Clashes of Taste in Constitutional Interpretation
Levinson, Sanford
Much of the contemporary debate about constitutional interpretation is carried on in the language of accountability. Constitutional interpretation is, after all, an "accounting" for a particular...
...479 (1966), based on "reasons stated at length" in Poe...
...4 Wheat...
...This is the point captured so well in Ronald Dworkin's introduction of his well-known distinction between "concepts" and "conceptions...
...The absence of a generally accepted account of the Constitution "itself " — something I am tempted to label the constitutional what—has generated an increasing tendency to debate a quite different question: To whom should judges feel themselves accountable...
...1232, 1251 (1987...
...He comes truly to praise Marshall rather than to criticize him...
...4 What I find intriguing is that White does not appear to be leveling a criticism against either the opinion or Marshall...
...There he conceded that "[t]here is no express provision for the case...
...This conceptual world is even more lost to most of us than is the world of plain meanings...
...What made the case difficult is that the Antelope was in the control of pirates who had seized the Africans from several slave ships...
...The principle of interpretive charity, it has been pointed out to me, threatens to become vacuous in the face of significant pluralism, for what is charity to one person will appear officious intermeddling to another...
...Responded Marshall, "We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of power...
...That tradition is a living thing...
...Robert Cover, who points out that Melville's father-in-law was an important Massachusetts judge who on occasion ruled against the claims to freedom of slaves, uses Billy Budd as a foundation for understanding the rhetoric of the judiciary in Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975...
...I mention Blaisdell in part because of its inherent interest...
...In any event, the judge's accountability was to the Constitution ratified by the people and available for inspection by the adjudicator...
...The initial attack on Black's views, of course, came from those identified as more conservative politically...
...Marshall wrote the opinion for a unanimous Court ordering the return of at least some of the slaves to their "owners...
...4 Second is the oath taken by a judge to honor the commands of the document...
...If we wish to respect the Constitution, then surely the most plausible operative rule of interpretation is something like, "Always adopt the interpretation that makes the Constitution most worthy of respect...
...Another important use of "accountability" in contemporary discourse, though, is that suggested by the debate surrounding the famed "counter-majoritarian difficulty" as propounded by the late Alexander Bickel.' The difficulty comes from a simple fact: Federal judges are not politically accountable to any electoral majorities, which is indeed a dilemma for a society committed broadly to a notion of democracy that makes decisionmakers accountable to those political majorities...
...Little credence is given to the possibility that life under even the American Constitution may be a tragedy, presenting irresolvable conflicts between the realms of law and morality...
...It is worth noting Marshall's emphasis on the word "crises...
...One suspects that Macedo would endorse certain Marshallian hints that principles of natural justice were part of the American constitutional corpus...
...Harvard Law Review 100 (1987): 781...
...Instead, their critics would argue that we live in a radically pluralistic world...
...We have earlier seen how slavery provides a central interpretive dilemma for those who would moralize the Constitution...
...For a very different reading of Captain Vere, which views his claims of legal accountability as being in bad faith, see Richard Weisberg, The Failure of the Word (New Haven: Yale University Press, 1984), p. 147...
...To interpret Article III in any other way than that proffered by Marshall would, he says, be to leave the clause being construed "inoperative...
...As Professor Van Alstyne pointed out many years ago, the relevant clause of Article III is fatally ambiguous as to whether it confers to the Supreme Court "only" a given original jurisdiction or "at least" that jurisdiction...
...Perhaps the classic articulation of this view is a magnificent opinion by Justice Harlan in which he justifies his willingness to strike down the Connecticut prohibition on the use of contraceptives that was indeed to be invalidated several years later in the now-famous Griswold case...
...32 Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), pp...
...22 Macedo is not altogether clear on what moral theory he prefers, but it seems to derive in part at least from classical natural law...
...27 is hard indeed to see why one should admire a Constitution that "requires" such results...
...To be sure, Fiss believes that a solution to any such crisis lies in a judge's willingness "[t]o read the moral as well as the legal text...
...Why would we model a framer whose intentions do not include a commitment to the moral worthiness of the overall enterprise, of which the particular clause being interpreted is itself only a part and against which it must inevitably be analyzed...
...It is, to be sure, not a constitutional opinion, but it is no less relevant for that...
...Marshall gladly borrowed from this argument .in his invalidation of the Maryland tax...
...22 Stephen Macedo, The New Right v. The Constitution (Washington, D.C.: Cato Institute, 1986), p. 4. 23 See Fletcher v. Peck, 6 Cranch 87 (1810), in which the Supreme Court, through Marshall, invalidated an attempt by the Georgia Legislature to undo the earlier sale by Georgia of lands comprising what are now the states of Alabama and Mississippi...
...From Hamilton's argument in the Seventy302 • DISSENT Eighth Federalist Paper to the present, an important defense of constitutional sovereignty as enforced by judges has been that they are merely carrying out the wishes of the people as indicated in the text that they ratified...
...What he disputed is that the Constitution, correctly interpreted, required such an outcome...
...Perhaps the best single example of the interpretive world within which we now live is provided by Home Building and Loan Association v. Blaisdell," one of the fundamental decisions in the jurisprudence of the modern, semiredistributive welfare state...
...Indeed, it "will scarcely be denied" that slavery "is contrary to the law of nature...
...The opposite pole of such principles, of course, is suggested by the common expression, "There's no accounting for tastes...
...Finally, there is the emphasis on the clarity of the language found in the written text that one has vowed to uphold: Marbury is a paean not only to writtenness...
...Surely one should try to construct a theory of constitutional interpretation that generates a Constitution that is admirable...
...Dworkin speaks of a father's telling his children that they should adopt as their guide for the treatment of others the concept of "fairness" or "respect...
...It will be published, in slightly different form, in a collection of papers given at the symposium...
...27 41 U.S...
...Someone trying to interpret a legal system must "impose meaning on the institution—to see it in its best light," and to resolve disputes accordingly...
...That point of the American Constitution, if we are indeed to have any "faith" in its goodness, must be to achieve a political order worthy of respect, and there is a very heavy burden of proof on any analyst who would say that the Constitution must be interpreted in a way that brings it into disrespect...
...280 Africans were on board...
...I think it fair to say that if we all subscribed to Marshall's own self-understanding (or at least the presentation) of his jurisprudence, there would be no dilemma to discuss...
...The case is The Antelope...
...I find Ronald Dworkin's phenomenological analysis, particularly as presented in his most recent book, Law's Empire, to be quite helpful...
...29 "The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery...
...He begins his discussion by reminding the reader that "this court must not yield to feelings which might seduce it from the path of duty...
...it celebrates as well the notion of constitutional plain style, of "express prohibition" and "obvious meaning...
...137 (1803...
...Perhaps there are times when that is impossible...
...33 Brest, "The Misconceived Quest," p. 234...
...23 Such views are obviously enticing because they promise a pleasant resolution to any perceived conflict between law and morality...
...Douglass engaged in a remarkable reversal of belief, delivering in Glasgow, Scotland, on March 26, 1860, a spirited defense of the Constitution, which he now described as "anti-slavery...
...Madison notes some of the limits of what we today might call "hard" sciences...
...16 The particular issue that Fiss focuses on is regulation of campaign financing...
...8 See Alexander Hamilton, "Opinion on the Constitutionality of an Act to Establish a Bank," reprinted in Paul Brest and Sanford Levinson, Processes of Constitutional Decisionmaking (Boston: Little, Brown & Co., 1983), pp.15-18...
...No better evidence can be found than James Madison's own analysis of language in the Thirty-Seventh Federalist Paper.' Indeed, I think it indicative of the new interest in interpretive theory that it has become one of the mot widely discussed of the Federalist Papers at bicentennial symposia, and it is worth a momentary digression to consider Madison's argument...
...Instead, "[w]hen a judge declares that a particular principle is instinct in law," he is making "an interpretive proposal: that the principle both fits and justifies some complex part of legal practice, that it provides an attractive way to see, in the structure of that practice, the consistency of principle integrity requires...
...17 Given their rejection of formalism in these particular contexts, it is hard to believe that they would be able, even if they wished, to return to a formalism in regard even to more "standardinstance" cases of freedom of speech...
...Fiss is less than clear on the source of the "moral text...
...Although homeowners were required to pay the banks monthly interest payments, the banks nonetheless sued, claiming that their contract rights were protected by the United States Constitution...
...What is true of discussions of nature is even more true of attempts to organize "the institutions of man...
...25 Justice Story, one of Marshall's colleagues, had earlier denounced the slave trade as "repugnant to the great principles of Christian duty, the dictates of natural religion, the obligations of good faith and morality, and the eternal maxims of social justice...
...Different historical understandings, under this view, demonstrate the existence of different conceptions of what makes one worthy of respect but not the repudiation by the earlier individual or culture of the basic norm of respect...
...21 Harlan's opinion was written in Poe v. Ullman, 367 U.S...
...Indeed, he accords the judiciary a "[s]pecial competence to interpret a text such as the Constitution, and to render specific and concrete the public morality embodied in that text...
...even more significant, according to Douglass, is the fact that most thinkers in 1787 "looked upon the slave trade as the life of slavery" and therefore presumed that its abolition would lead to "the certain death of slavery...
...IS Keystone Bituminous Coal Association v. DeBenedictis, 107 S.Ct...
...20 Frederick Douglass to C.H...
...they themselves must be interpreted, and Douglass's "rules" seem more attractive than any competitor's...
...m "[T]he power to tax is the power to destroy," he claimed...
...This debate in substantial measure concerns the limits to the authority of constitutional interpreters, whether judges or others...
...14 James Boyd White, When Words Lose Their Meaning (Chicago: University of Chicago Press, 1982), p. 263...
...The Life and Writings of Frederick Douglass (New York: International Publishers, 1950), Vol...
...I have suggested that we are, at best, uncertain about the existence of a stable Constitution to which we can genuinely expect accountability on the part of judges who have solemnly pledged to be bound by it...
...9 Marshall had based his decision in McCulloch on what Justice Frankfurter has nicely labeled a "rhetorical absolute...
...There are significant differences between early nineteenthcentury approaches to interpretation and those found today, and there is much contemporary debate about the possibility (and perhaps the merits as well) of returning to those earlier approaches...
...But such a Constitution would be unworthy of respect and obedience...
...Some contemporary analysts do, however, base their arguments on particular philosophical premises associated with "modernism...
...But I am curious why anyone would adopt a theory of interpretation that would not try to minimize the number of times that one would feel torn between one's roles as "jurist" and "moralist," if one takes either law or morality with sufficient seriousness...
...T]he intentions of the framers of the Constitution were good, not bad...
...what one can assume is that he wished to be himself a person worthy of respect...
...I See Panhandle Oil Co...
...Respect comes because the audience of the narrator recognizes the narrative as drawing on what is best within the range of its cultural possibilities...
...19 As Fiss well argues, even if one assumes the theoretical plausibility of the positivist enterprise, there remains the problem that "[a] too rigid insistence on positivism will inevitably bring into question the ultimate moral authority of the legal text—the justness of the Constitution...
...That is, judgments of degree would be necessary...
...2) "Where a law is susceptible of two meanings, the one making it accomplish an innocent meaning, and the other making it accomplish a wicked purpose, we must in all cases adopt that which makes it accomplish an innocent purpose...
...He seemed to suffer few doubts about the legitimacy of his enterprise, and I doubt that he would have found the modern discussion of accountability anything else than distracting...
...31 Robert Bork, "Tradition and Morality in Constitutional Law," in Mark Cannon and David O'Brien, eds., Views from the Bench: The Judiciary and Constitutional Politics (Chatham, N.J.: Chatham House Publishers, 1985), p. 171...
...Thus, "American statesmen, in providing for the abolition of the slave trade, thought they were providing for the abolition of slavery...
...Alexander Bickel, The Least Dangerous Branch (Indianapolis: Bobbs Merrill, 1962), pp...
...But what might be the seduction that so worries Marshall...
...that, after all, might be the function of constitutional amendments, to transform the unacceptable into the tolerable...
...12 Philip Kurland, ed., Felix Frankfurter on the Supreme Court (Cambridge: Harvard University Press, 1970), pp...
...The answer is that their opponents are fundamentally dubious of the existence of a shared moral reality, even if interpreted, as Dworkin would wish, only as a shared set of conventional narratives that set out the social meanings we ascribe to our lives...
...He wrote a brief concurrence in Griswold v. Connecticut, 381 U.S...
...And, to revert once more to Frankfurter, one must always remember "that the 'Constitution' which [the justices] 'interpret' is to a large measure the interpretation of their own experiences, their 'judgment about practical matters,' their 'ideal picture of the social order.' "12 Those of us attracted to the theme of irony in political thought should surely enjoy the embrace of Justice Frankfurter by at least some contemporary "conservatives" who preach the return to much more categorical understandings of the Constitution, for practically no one was more important than Frankfurter in demolishing the cogency of such understandings...
...The quoted passages come from pp...
...But it is useful for another reason, the fact that almost all "liberals" support it...
...But SUMMER • 1988 • 305 even the academic left is ever less willing to make Blackian arguments today...
...Stephen Macedo, while defending what he terms "principled activism" against critics from the New Right, has recently issued a call somewhat similar to that of Fiss...
...9 T. Alexander Aleinikoff, "Constitutional Law in the Age of Balancing," Yale Law Journal 96 (1987) 943-45 (1987...
...Indeed, part of the rhetorical success of Hughes' opinion in Blaisdell is precisely the linkage of Marshall and Holmes, which calls into question the opposition set up earlier between "classical" and "modernist" modes of interpretation...
...2° Indeed, as Fiss points out, the mere ability to raise the possibility that the Constitution is immoral indicates "[a] moment of crisis in the life of a constitution...
...See also Barber, On What the Constitution Means, pp...
...Chase, "The North Star," February 9, 1849, in P. Foner, ed., The Life and Writings of Frederick Douglass (New York: International Publishers, 1950), Vol...
...1822...
...he vividly portrays a process of popular sovereignty that gave life to the document...
...133-135...
...Entire forests, of course, have been sacrificed to produce books attempting such an accounting...
...And he had gone on to say that "it is impossible that [the trade] can be consistent with any system of law that purports to rest on the authority of reason or revelation...
...33 One stares at the portrait and may even discern (and suggest to others) a family resemblance across the generations...
...Wheat...
...Marshall's emphasis on constitutional clarity is repeated even when the "text" takes on a much more complicated dimension, as in his invalidation in McCulloch v. Maryland of an attempt by Maryland to impose a tax on the operations of the federally chartered Bank of the United States...
...That case involved the constitutional propriety of a law passed by the Minnesota legislature during the Great Depression that imposed a "moratorium" on the duty of homeowners to make their mortgage payments...
...Madison clinches his argument by making reference to the Bible itself: "When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful, by the cloudy medium through which it is communicated...
...Let me summarize, then, my discussion of constitutional accounting...
...Mass...
...And the overarching debate among constitutional interpreters concerns the existence of what might be termed "generally accepted principles of constitutional accounting" that will allow us to distinguish between proper decisions and distorted renderings of the Constitution...
...Macedo argues that "[b]y fusing constitutional interpretation and moral theory, principled activism vindicates the Constitution's authority by establishing its rightness...
...One need not be a modernist philosopher or a legal realist to find these terms less than transparent...
...We might ponder at this point an observation by James Boyd White in regard to Marshall's opinion in McCulloch—that it "seems to be less an interpretation of the Constitution than an amendment to it, the overruling of which is unimaginable...
...The source of information about 306 • DISSENT this balance is "what history teaches are the traditions from which [our Nation] developed as well as the traditions from which it broke...
...2 If, however, we had more confidence in the "comprehensibility" of the Constitution, we would not be so tempted to seek out other justifications for judicial review that are so common today...
...The contract clause of the Constitution states that "No State 304 • DISSENT shall . . . pass any . . . Law impairing the Obligation of Contracts...
...Chicago: University of Chicago Press, 1962), p. 111...
...That did not, however, make the Constitution any less clear in meaning, for Marshall asserted the existence of "a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds...
...In determining what the Constitution might "require" of them, they must surely resolve to decide any of their own mental disputes in favor of the most respectworthy conception of the Constitution, where respect is defined in terms of the values enunciated by the preamble to the Constitution, with its insistence on the blessings of liberty and the promotion of justice...
...The judge quickly learns to read in a way that avoids crises...
...But it is worth noting that there is nothing substantially new in skepticism about the clarity of language...
...The guiding rhetoric of Marshall's greatest decisions focuses on the principle of "constitutional supremacy" —the ability to measure a legislative act against the commands (and limits) established by the new document...
...24 It concerns the importation of slaves into the United States, which had been prohibited by Congress in 1808...
...i.e., in reading someone, whether friend or foe, interpret his or her remarks in a way that maximizes the ability to respect what is being said...
...T]he medium through which the conceptions of men are conveyed to each other, adds a fresh embarrassment," for "no language is so copious as to supply words and phrases for every complex idea," leading to an "unavoidable inaccuracy" whenever speech is used in regard to something so complex as human governance...
...But what do we do with Marshall in terms of the conventional debate...
...3° Instead, Douglass "den[ied] that the Constitution guarantees the right to hold property in man...
...5 William Van Alstyne, "A Critical Guide to Marbury v. Madison," Duke Law Journal 1 (1969): 30-31...
...Few of Marshall's admirers, though, seem to hold this—or any of his other deviations from otherwise favored models of constitutional interpretation—against him...
...The United States can surely prevent Americans from engaging in the trade and, of course, SUMMER • 1988 • 307 can prevent anyone from importing slaves into the United States...
...Marshall had (or at least articulated) sublime confidence in his ability to grasp and expound the Constitution...
...I find more plausible the view that one finds that "moral text," assuming it exists at all, in the basic assumptions that have undergirded our polity over these many years...
...28 Sotirios Barber, On What the Constitution Means (Baltimore: Johns Hopkins Press, 1984), p. 57...
...175-180...
...16 Pet...
...Indeed, my colleague Lucas Powe has suggested that the contemporary citation of Marshall's evocation of "a constitution" is an almost sure signal that the Court is about to confound one's "common sense" reading of the Constitution in favor of what Justice Holmes, in another context, called the "felt necessities of the times...
...Alex Aleinikoff has called our era "the Age of Balancing...
...5 Either can be plausibly defended...
...The national government could therefore abolish slavery upon the election to office "as will use their powers for the abolition of slavery...
...it "must obey the mandate of the law...
...So we end up honoring our constitutional fathers (who, alas, allowed almost no role for constitutional "mothers") by doing what they did to their parents, i.e., leaving them behind and forging new worlds, including the linguistic and conceptual, for ourselves...
...I suspect that few readers of Dissent would object to the bland restatement by the Court only last year that "it is well-settled that the prohibition against impairing the obligation of contracts is not to be read literally...
...25 Herman Melville, Billy Budd, Harrison Hayford and Merton M. Sealts, eds...
...So much for "the jurisprudence of original intent...
...All further quotations from Fiss come from this article...
...I cannot resist, incidentally, the observation that Justice Harlan seems considerably more "Burkean" than are some of the "New Right" opponents of such decisions as Griswold...
...19 See, e.g., Paul Brest, "The Misconceived Quest for the Original Understanding," Boston University Law Review 60 (1980): 204...
...As Joyce Appleby so aptly rejoined, it was in the shop for at least four of those years and emerged with a fundamentally new motor when the Reconstruction Congress, acting with questionable legality, finished amending the failed Constitution of 1787...
...Some lawyers had plausibly suggested that the Constitution did not prohibit all state taxes on federal instrumentalities, but only overbearing ones...
...467-480...
...How does one interpret the Constitution or resolve a delicate constitutional controversy...
...and can only be a test of expediency...
...18 Owen Fiss, "Objectivity and Interpretation," Stanford Law Review 34 (1982): 739, 753 (emphasis added...
...4 Marshall deems "a written constitution" to be "the greatest improvement on political institutions" introduced by the founders of the new political order in the United States...
...The clarity with which this audience purportedly spoke was central to Marshall's self-justifying rhetoric...
...Thus homeowners who regularly paid, say, $100 per month to the bank might find themselves facing a final payment of $5,000, with the bank unwilling to "roll over" this sum into a new mortgage...
...Constitutional interpretation is, after all, an "accounting" for a particular result that one views as required by the Constitution...
...3 Marbury v. Madison, 1 Cranch (5 U.S...
...United States law of the time provided that persons discovered attempting to import slaves would forfeit their ships and that the slaves would be returned to Africa...
...At least some of what we sometimes label peculiarly "modern" ideas were in fact available within eighteenth-century culture...
...To put it mildly, the tone of contemporary discussion of constitutional language is much less confident than that found in most of Marshall's major pronouncements...
...As a result, I have argued elsewhere, much contemporary constitutional theory concentrates almost exclusively on the functions to be served by courts and judges, particularly the Supreme Court, and tends to leave "the Constitution," at least as traditionally understood, in abeyance...
...Constitutional theorists, whether self-consciously or not, present conceptions of the Constitution that they find worthy of moral commitment...
...29 At no time did he deny that many of the framers were sympathetic to slavery or that the Supreme Court had interpreted the document to protect the institu308 • DISSENT tion...
...The documentary Constitution is evoked, to be sure, but in Paul Brest's marvelously troubling metaphor, "It is rather like having a remote ancestor who came over on the Mayflower...
...Article V, "if made to refer to the African slave trade at all, makes the Constitution anti-slavery rather than for slavery, for it says to the slave States, the price you will have to pay for coming into the American Union is, that the slave trade, which you would carry on indefinitely out of the Union, shall be put an end to in twenty years if you come into the Union...
...If part of the reason for the shape of contemporary constitutional theory is derived from the problematics of interpreting language in general, surely another part comes from a SUMMER • 1988 • 301 recognition of the tense relation between legal and moral norms...
...497 (1961...
...Instead, the judge looks to the "balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society...
...an earlier article by Cass Sunstein of the University of Chicago Law School made similar arguments in regard to sexually explicit materials deemed degrading to women...
...One must This essay was initially presented to a symposium on Constitutionalism in America held at the University of Dallas in October 1987...
...There is an affinity between Dworkin's emphasis on the duty of the judge to provide "attractive" narratives and Sotirios Barber's insistence that the Constitution be interpreted "aspirationally," as containing "the best conception of the good society known to us for the time being," even as we recognize that those conceptions might change at some future point...
...One may or may not be entirely persuaded by Douglass's argument, but it is an excellent example of how the principle of charity operates...
...Consider the very significant article by Yale Law School Professor Owen Fiss in the hundredth anniversary issue of the Harvard Law Review, where he calls on his fellow liberals to move beyond sterile First Amendment formalism in precisely the same way they have proved willing to reject categorical formalism in regard to property or contract...
...66 (1825...
...The quoted passages can be found on p. 17...
...It is a sign of Marshall's rhetorical success that most of the subsequent debate about Marbury has focused on the propriety of judicial review rather than on the fact that he is demonstrably wrong in his linguistic premises...
...Nothing is gained, and much is lost, by pretending, as one bicentennial button put it, that the Constitution is "still working after 200 years...
...That, I think, is the reality facing those of us who purport to be 310 • DISSENT constitutional theorists...
...A Holmesian emphasis on fundamental social and intellectual cleavage has displaced a more reassuring image of unity and underlying consensus...
...398 (1934...
...That must ever be a matter of opinion...
...Are one's preferences in constitutional interpretation more than matters of mere taste...
...How immoral to impose it on [judges,]" Marshall exclaims, "if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support...
...30 It is worth noting that Dworkin presents a somewhat SUMMER • 1988 • 311 similar reading of the Constitution in "The Law of the Slave-Catchers," Times Literary Supplement, December 5, 1975, p. 1437 (reviewing Robert Cover, Justice Accused...
...5 A different tune is often heard, of course, in regard to the First Amendment, which has the same linguistic structure as the contract clause...
...Similarly, Story, whatever his views about the morality of slavery, upheld the constitutionality of the Fugitive Slave Act of 1793 when it was challenged in Prigg v. Pennsylvania...
...Hughes rejected "the perversion of the clause through its use as an instrument to throttle the capacity of the States to protect their fundamental interests...
...218, 223 (1928) (Holmes, J., dissenting...
...See generally John T. Noonan, Jr., The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (Berkeley: University of California Press, 1977...
...Yet I think it is significant that far fewer voices are heard these days emulating the linguistic formalism of Justice Black...
...6 To be sure, Marshall joins to these arguments about language and fidelity to the text an assertion about more Bickelian accountability...
...Yet one nonetheless knows how terribly distant, how truly lost, are the life and culture of the ancestor...
...The Dworkinian narrative makes "a complex claim: that present practice can be organized by and justified in principles sufficiently attractive to provide an honorable future...
...He has denounced that "arid and artificial conception of interpretation" he labels "textual determinism," which he links with that form of legal positivism that emphasizes "the 'written constitution' and stresses factors like the use of particular words or the intent or beliefs of the framers, all of which have little or no moral relevance ."' 8 The problems with these modes of interpretation go well beyond the theoretical difficulties in ascertaining the true meaning of the text or the intentions of its authors, which for some are enough to doom them as coherent enterprises...
...316, 426 (1819...
...Indeed, what one does is reinterpret the link to that ancestor not by pretending to a fully shared substantive culture that surely does not exist, but rather by emphasizing as part of that ancestor's legacy the existential courage that he or she required to leave the security of an old order, to smash its idols, as it were, and to forge a new life in a new land...
...It may be that the father (sincerely) holds a conception of "fairness" that allows chattel slavery, but most of us believe that the children would be more faithful to their instructions if they ended up freeing the slaves, after developing a more sensitive understanding of what "fairness" and "respect" require of one, than if they woodenly adhered to the parental conception...
...I want to go next to a consideration of this aspect of constitutional interpretation...
...17 Cass Sunstein, "Pornography and the First Amendment," 1986 Duke Law Journal 589 (1986...
...32 This principle of interpretation, and the SUMMER • 1988 • 309 necessary joinder of law and morals that is entailed, seems clearest when one is discussing not the judge but rather the ordinary official who has made his or her own promise to be guided by the Constitution...
...832 (C.C...
...Douglass's interpretive strategy is summarized in two "rules of interpretation" that he offers: (1) "[T]he language of the law must be construed strictly in favour of justice and liberty...
...One can observe, however, in Douglass's own thought the application of the maxim of charitable interpretation as a means of extricating oneself from what would otherwise be a terrible bind...
...1, p. 353...
...Recall, for example, Frederick Douglass's statement describing the Constitution as "a pro-slavery instrument" that he simply could not "swear to support" or, presumably, to respect...
...Tastes of the Founders I begin with some comments on what might be termed "classical" constitutional theory, particularly as derived from John Marshall...
...Many of us remember when Hugo Black structured much of his jurisprudence around the notion that "no law" meant "no law...
...Skeptical theories emerge among nominalists in the late middle ages and burst into major political theory in the writings of Thomas Hobbes...
...Some other defense would be necessary...
...One need not be so pessimistic as to proclaim that "whirl is king," but it seems to me that recognition of our fundamental pluralism could only be helpful to the way in which we engage in our arguments with one another...
...Probably the most important contribution of Owen Fiss to contemporary constitutional debate, however, has come in his emphasis on the third issue raised in my introductory comments—the "fit" between the Constitution and morality...
...For Dworkin the task of the legal analyst is to embed a particular analysis within an overall interpretive narrative that binds together the wide range of relevant legal materials into a story capable of gaining our respect...
...That does not mean, of course, that Fiss and Sunstein would be less speech-protective in these standard instances, but only that they could not take refuge in the textual prohibition of the First Amendment...
...Tastes of the Moderns Consider one of John Marshall's most interesting cases, albeit not part of the Marshallian "canon" taught in our classrooms...
...13 290 U.S...
...Madison indirectly challenges a foundation stone of classical constitutional jurisprudence —the ability to define firmly bounded categories, whether "taxation," "interstate commerce," or whatever, whose recognition would allow a firm division to be created SUMMER • 1988 • 303 between constitutional application and more ordinary political assessment...
...The task constructed for the constitutional interpreter by Blaisdell in almost every case features the Court engaging in precisely what Hamilton and Marshall professed to fear and to condemn as outside the realm of knowledge of the welltrained lawyer: the making of exquisite calculations of degree and expediency before entering judgment...
...Obviously, that argument is not without bite even today, for it serves as part of the foundation of so-called "originalist" interpretive arguments that have become such an important part of the current debate...
...Replacing the absolute, presumably, is the new, more "realist" understanding of Frankfurter's great mentor, Justice Holmes, who had observed that "[i]n those days," i.e., the dim past of our primitive ancestors, "it was not recognized as it is today that most of the distinctions of the law are distinctions of degree...
...119-120...
...Michael Perry also makes an extended "aspirational" argument in Chapter 7 of his forthcoming book on constitutional interpretation to be published by the Oxford University Press...
...We are, I would suggest, all balancers now, recognizing that constitutional interpretation, including that engaged in by judges, invariably involves judgments of degree...
...6 17 U.S...
...One might think that both clarity and categorization join to invalidate a state law that suspends the contractual duty of mortgage holders to comply with the terms of their mortgages...
...Identical arguments operate, of course, even if one declares that he or she is going to follow the "original intentions" of the constitutional authors, for everyone agrees that these intentions are never self-declaring...
...Instead he quotes Marshall: "We must never forget that it is a constitution we are expounding—a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs...
...Thus, in regard to the entrenchment of the slave trade until 1808, he says that it is equally important that the Constitution clearly countenanced its abolition, at least after 1808...
...Hughes, however, rejects not only the dictionary meaning of the particular words constituting the clause, but also the most likely intentions of its authors...
...He thus went on to offer a counter to Marshall: "The power to tax is not the power to destroy while this Court sits...
...Part of the difficulty, of course, is that we live our lives within a morally pluralistic order that itself has contributed to the constitutional disorderliness whose existence seems to be the only thing on which all constitutional theorists agree...
...one might think that an equally important word, well worth emphasis on its own, is "adapted...
...I will argue in the first part of this essay, though, that the concern about political accountability expressed by Bickel and others comes not only from an esteem for the rights of political majorities but also, and just as importantly, from a diminished belief in the capacity to grasp, in any very satisfying way, the "meaning" of the Constitution as a foundational document or enclosed set of understandings...
...24 23 U.S...
...Many contemporary articles are replete with references to Wittgenstein, Nietzsche, or Denida, not to mention homegrown writers like Stanley Fish and Richard Rorty...
...the only position that cannot be maintained, however, is Marshall's own, that the text speaks with a single obvious meaning...
...Presumably the "best" judges are the ones who recognize such limits and stay within them...
...Alexander Hamilton, for example, had strongly argued, in his defense of the constitutionality of the Bank of the United States, that "[t]he degree in which a measure is necessary, can never be a test of the legal right to adopt it...
...The "criterion of constitutionality," according to Hamilton, was "[t]he relation between the measure and the end" and distinctly "not the more or less of necessity or utility...
...its content cannot be determined by reference to any code," including, presumably, the constitutional text itself...
...A ship, the Antelope, was apprehended off the coast of Florida by a United States revenue cutter...
...2, pp...
...The original Spanish and Portuguese "owners" of the slaves sued to get their "property" back, claiming that they had not attempted to circumvent the American law and that they therefore deserved to have their slaves returned to them...
...N]o skill in the science of Government has yet been able to discriminate and define, with sufficient certainty . . . even the privileges and powers of the different Legislative branches...
...Chief Justice Hughes, viewing the legislation as a "reasonable means to safeguard the economic structure upon which the good of all depends," wrote for a five-justice majority to sustain the depression-era statute...
...on p. 178...
...Dworkin's argument in many ways reduces to one of interpretive charity...
...Indeed, I think it important to be reminded that law almost certainly cannot resolve truly fundamental conflict, as is certainly the case with our own Constitution...
...The last sentence quoted above seems to suggest that there is a "public morality embodied in [the] text" of the Constitution itself, but he had earlier announced his enterprise as following from the constitutional delegitimation that occurs if one too unimaginatively focuses on such presumably textual embodied practices as slavery...
...In place of assertions of clarity are recognitions of complexity and, some would say, endless ambiguity...
...536 (1842...
...But, Marshall held, the United States must recognize the claims of "innocent" foreign owners who were not violating the law of their own countries in attempting to ship slaves to a country that could legally receive them...
...As if to underscore the point about Marshallian adaptation, Hughes quotes Holmes's statement that the authors of the Constitution "called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters" and the interpretation of which demands consideration "of our whole experience and not merely . . . of what was said a hundred years ago...
...That being recognized, I nonetheless think it fair to say that the sovereign public was not envisioned by Marshall as an actual entity with continuing rights to challenge the handiwork of judges so much as an "ideal audience" that gave heart to the judges who had become its visible manifestation...
...2 See Sanford Levinson, "Judicial Review and the Problem of the Comprehensible Constitution," Texas Law Review 59 (1981): 395 and "The Turn Toward Functionalism in Constitutional Theory," Dayton Law Review 8 (1983): 567...
...What explains, then, the fact that Dworkin's and Barber's ideas are extremely controversial within the legal community...
...The first leg is the very writtenness of the Constitution...
...16-23...
...And, just as branches of the family tree can take on very different appearances, so do "we" end up with strikingly different versions both of what counts as maintaining the constitutional tradition and of what "accounts" we give for our particular constitutional renderings...
...then account for judicial authority in the absence of judicial accountability...
...26 United States v. La Jeune Eugenie, 26 F. Cas...
...Thus, when Robert Bork argues in behalf of "the proposition that the framers' intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed," 3 ' we are still left with the task of constructing a model "framer" whose stipulated intentions can breathe life into a disputed text...
...In his nicely put comment, "familiarity [has] bred consent...
...He adopts a very different rhetoric from that observed in Fletcher, the case that seemed to embrace natural justice as a constitutionally regulative norm...
...And I have no clue as to what meta-principles might resolve those conflicts...
...Instead, a categorical anathema was delivered: All such taxes would be prohibited...
...Some of this recognition is the product simply of the fact that contemporary analysis tends to focus on what Justice Jackson once called the "majestic generalities" of clauses promising "equal protection" and "due process of law...
...The crucial point, of course, is that the use of such power would be entirely congruent with fidelity to the Constitution...
...2 ' Harlan refused to reduce notions of due process "to any formula...
...234-237...
...7 All of the quotations below are taken from Jacob Cooke, ed., The Federalist (Middletown, Connecticut: Wesleyan University Press, 1961), pp...
...The Supreme Court for the past several decades has "applied a balancing approach to area after area in constitutional law" that "has transformed constitutional adjudication and constitutional law...
...26 Marshall himself notes how "abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice...
...One finds that "obscurity . . . reigns in these subjects," and the reason is not incapacity but the limits of humankind, including the limits of language...
...Obviously, it would be up to "this Court" (or in practice some lower federal court) to decide how destructive a given tax was...
...The answer, of course, lies in the moral claims to be made against slavery and the concomitant temptation to act in accordance with those claims...
...He goes on to use these rules to establish his antislavery reading of the Constitution...
...According to Dworkin, the father might well, indeed should, be treated as having said that he "meant the family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind...
...There is thus a disinclination to accept the reality of the "we" or "us" so often invoked by these theorists...
...28 At one level, it seems impossible to dispute Dworkin and Barber, for why would a constitutional analyst ever prefer a "less attractive" conception of the Constitution to a "more attractive" one...
...Marshall is anticipating the argument that would later be placed in the mouth of Captain Vere by Melville in Billy Budd: "Our vowed responsibility is in this: That however pitilessly that law may operate in any instances, we nevertheless adhere to it and administer it...
...466, 489 (1939) (Frankfurter, J., concurring...
...But if White is correct—that is, if we share both his perception and his willingness to commend Marshall's performance in McCulloch—then we need to recast much of the contemporary debate about constitutional interpretation...
...All of this having been said, though, the Court cannot escape recognizing that "[t]he Christian and civilized nations of the world, with whom we have most intercourse, have all been engaged in" the slave trade and that established international law protects the trade, at least in the absence of domestic prohibition...
...Articulation of this principle is, of course, the central achievement of Marbury v. Madison, the 1803 decision that established the possibility of judicial review through its declaration of the unconstitutionality of a section of the Judiciary Act of 1789 passed by the first Congress . 3 Marshall builds a triadic structure to support his ultimate decision...
...16 Owen Fiss, "Why the State...
...One must understand that the common form of mortgage financing in those days involved so-called "balloon payments" at the end of a contract rather than the amortized equal monthly payments common today...
...So held Justice Sutherland, writing an eloquent and outraged dissent that is viewed by most legal academics as the last great statement of reactionary formalism...
...v. Knox, 277 U.S...
...It is not only that beauty (or "attractiveness") lies in the eye of the beholder—for Dworkin (though not Barber) in substantial ways would agree—but that there are simply too many beholders, each with his or her own idiosyncratic sense of beauty...
...Fiss concedes, for example, that an all-toocomprehensible Constitution might well be read to have protected slavery...
...It is obviously irrelevant that a "framer" of the Constitution might have had a different understanding of what specifically was respectworthy...
...117-119 (1984...
...8 Hamilton is drawing, of course, on the classical distinction between opinion and knowledge, and he is suggesting that constitutional adepts can strive toward genuine knowledge that is altogether different from the mere opinion found when one discusses the "expediency" of a particular matter...
...The most sagacious and laborious naturalists have never yet succeeded, in tracing with certainty, the line which separates the district of vegetable life from the neighboring region of unorganized matter...
...I° Graves v. O'Keefe, 306 U.S...
...The point is that one cannot begin to engage in constitutional interpretation without having in mind a model of the point of the entire constitutional enterprise...
...It is hard to imagine a contemporary deconstructionist expressing a greater skepticism about the likelihood (or perhaps even possibility) of Marbury-asserted plain meanings...
...As Frederick Douglass put it, when he still viewed the Constitution as "a proslavery instrument," it was a document "I cannot bring myself to vote under, or swear to support...
...As Hamlet put it in another context, "That is the question...
...To declare that something is "the law" is not merely to say that someone with power desires a particular outcome...
Vol. 35 • July 1988 • No. 3
