The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My prior posts (collected in this paragraph) have set forth some of the more controversial propositions discussed, and to varying extent embraced, by the book. In particular, the book—while endeavoring to be even-handed—strongly contests the modern myth of judicial supremacy in constitutional interpretation. Important historical examples support the propriety in principle of executive and congressional resistance to erroneous, destructive judicial misinterpretations of the Constitution—for example, Lincoln's resistance to the legitimacy and authority of Dred Scott. The book discusses seriously the idea of independent state interpretive authority—including the possible (limited) legitimacy of the ideas of state "interposition" and "nullification." And finally, the book discusses the possible constitutional propriety of congressional use of the impeachment power as a check against willful, deliberate, aggressive judicial (or executive) misinterpretation of the Constitution.
Implicit in all this is the notion that sometimes—of course!—the Supreme Court gets it wrong. It is hard to read "The Constitution: An Introduction" without having a strong sense of this harsh reality. (We also have some harsh words about the original Constitution, especially in regard to its protection and encouragement of slavery. The framers sometimes got it wrong, too.) And when the Supreme Court gets it badly wrong, it becomes all the more important to contest the modern conventional un-wisdom that there is nothing that anybody else properly can do about it.
Our nation's constitutional history is littered with a long and unfortunate trail of harmful constitutional misinterpretations committed by the Supreme Court: Prigg v. Pennsylvania, Dred Scott v. Sandford, Bradwell v. Illinois, Plessy v. Ferguson, Giles v. Harris, Berea College v. Kentucky, The Insular Cases, Elk v. Wilkins, Schenck v. United States, Debs v. United States, Lochner v. New York, Buck v. Bell, Minersville School District v. Gobitis, Hirabayashi v. United States, Korematsu v. United States, and (more controversially to modern sensibilities) Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart.
There is certainly room to quibble about some of these cases—and we strive to set forth the opposing positions as fairly as possible—but in the end we think that each of these decisions was intellectually indefensible, under any fair reading of the Constitution's text, structure, and history. (An astonishing number of these cases come from the period of 1876-1936, covered in our Chapter Eight under the unflattering title of "Betrayal.")
Criticism of many of the Court's most famous (or infamous) decisions is neither a distinctively "conservative" nor "liberal" view, when considered in the broader historical sweep of U.S. history. Faithful constitutional interpretation does not—or at least it should not—map neatly onto political platforms or affiliations and will produce different perceptions of its political consequences in different eras.
Our book, for example, does not come to uniformly "conservative" or uniformly "liberal" conclusions on specific constitutional issues, during any period. Those reading just Chapters Eight (1876-1936) and Chapter Nine (1936-1960), in isolation, might judge the authors to be political liberals. Those reading just Chapter Ten (1960-2015) might well reach the opposite conclusion.
Either conclusion would be too simplistic and reductionist. For example, today's political conservatives and libertarians may well chafe at our defense of the legitimacy of the broad view of Congress's enumerated legislative powers and our cautious defense of the New Deal era cases in this regard. Some economic conservatives might take exception to our relatively unreserved criticism of Lochner. Other (methodological) constitutional conservatives might question our embrace of Youngstown Sheet & Tube Co. v. Sawyer, Brown v. Board of Education, and even some of the modern Court's sex-discrimination equal protection cases, as well as our generally liberal stance on free speech and free exercise of religion.
On the other hand, some political liberals certainly will not be pleased to see Roe v. Wade's legal methodology and conclusions laid side-by-side with Dred Scott's and shown to bear a decided and uncomfortable resemblance. Today's liberals and leftists might well also take exception to our defense of presidential executive power and unity, and to our criticisms of the Court's impairment of presidential Commander in Chief Clause powers in the modern cases of Hamdi v. United States, Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush. Liberals might be somewhat cheered, however, by our view that the President of the United States may not constitutionally initiate war on his own authority, but always requires authorization from Congress.
All of which goes to show (we think) that faithful constitutional interpretation will sometimes yield politically "conservative" results and sometimes yield politically "liberal" results.
Whether or not one agrees with our specific conclusions with respect to each of the cases listed above, it is well nigh impossible to say that the Supreme Court has been and therefore should be treated as inerrant in matters of constitutional interpretation. Sometimes the Supreme Court gets matters wrong, and gets them wrong rather badly. That obvious truth, we submit, makes it harder yet to sustain the posture of reflexive judicial supremacy—the view that the other branches of government, subsequent generations of courts, state officials, juries, voters, and citizens must accept the decisions of the Supreme Court as (in Lincoln's words) a "thus saith the Lord."
The book ends with a short, three-page "Coda" of possible lessons to be gleaned from our constitutional history, viewed broadly. The Coda begins by asking whether it is possible to reach any firm conclusions:
Is it possible to draw clear lessons from our nation's constitutional history? The sheer number of disputes, the twists and turns produced by events and competing views, and the irreducible complexity of history resist easy categorization. Different people will draw different conclusions from this history, and different conclusions about whether and how this history affects the meaning of the Constitution. We offer a few observations of our own, suggested by the interaction of the Constitution's imperfect text with its uneven history of interpretation.
The first few lessons we suggest are that the Constitution has been, in general, a highly successful political and legal arrangement; that this nonetheless should not blind us to its flaws or lead us too-cheerfully to believe that the course of America's constitutional history has been a straight path of progression toward perfect justice; and that the Supreme Court has had, at best, an imperfect and inconsistent record of performance in construing and applying the Constitution.
I will close this series of posts with the last two of our suggested lessons from America's constitutional history, in a passage that closes the book:
All of this suggests a fourth lesson to be gleaned from our constitutional history: interpreting the Constitution is a game best not played alone. The Constitution's words and structure do not set up one single, authoritative interpreter of the Constitution—contrary to the myth that has grown up around the often misunderstood case of Marbury v. Madison. The Constitution does not establish judicial supremacy, but constitutional supremacy: the supremacy of the document itself. And the Constitution's system of separation of powers and even federalism set up a framework in which multiple actors—presidents, legislators, juries, and voters, as well as judges—each have a legitimate role to play in giving the Constitution practical effect and in checking the errors of the others. No one branch or institution has the sole power of constitutional interpretation. The Supreme Court did not write the Constitution, does not own the Constitution, and has not always correctly interpreted the Constitution. Our constitutional system has worked best when each and every government official and citizen has taken a full, active, faithful role in interpreting the Constitution. Plessy v. Ferguson may have been overruled by the Court itself, sixty years later, in Brown v. Board of Education. But Dred Scott was overruled by political resistance, by Lincoln's resolution, and ultimately by civil war and constitutional amendment by the people—not by the Supreme Court.
Fifth, and finally, it seems that the system has worked best when those interpreting the Constitution—the courts and others—have adhered most faithfully to the text and not launched out on departures or policy inventions of their own, in the name of the Constitution. Rare indeed is the judicial decision that is condemned for its strict, faithful interpretation of the document. The truly awful cases of the Court's constitutional history—and those that remain bitterly controversial today—are generally ones in which the Court has abandoned the words and original meaning of the Constitution's text and struck out on its own path. Nor are political officials often condemned for their faithful adherence to the words of the Constitution; more often they have been criticized for twisting or disregarding its meaning and spirit in order to justify their actions. The Constitution remains our standard of conduct for all government officials. Those who depart from it, or who act unfaithfully in its name, have been the antagonists, not the heroes, of our nation's constitutional history.
These observations—themselves subject to debate in some of the conclusions they reach—surely do not exhaust those that could be drawn from the Constitution and its history. "We the People of the United States," the owners of the Constitution, have not finished its story or finished arguing over the Constitution's proper interpretation. Our book thus ends incomplete. The next chapters are in the hands of the people whose Constitution it is—in the hands of "ourselves and our Posterity."