How Statutes Interpret the Constitution
In A Republic of Statutes, William Eskridge and John Ferejohn argue convincingly that statutes represent basic components of our constitutional structure. Statutes lie at the center of “administrative constitutionalism,” defined as “the process by which legislative and executive officials, America’s primary governmental norm entrepreneurs, advance new fundamental principles and policies.” At one level, this notion is uncontroversial: everyone agrees that the written Constitution authorizes elected officials to enact legislation and grants them extensive discretion in doing so. But Eskridge and Ferejohn go further. They argue that some of these policies become permanent features of our governmental structure and that, in their scope, significance, and level of entrenchment, they serve as elements of the “small ‘c’” constitution that shapes our system of governance. Further still, they suggest that these entrenched policies then determine the way the “Large ‘C’” Constitution (the actual document) is interpreted. “Constitutional law’s evolution is generally—and ought to be—influenced by the norms entrenched in other ways,” they write. “[T]he Supreme Court’s proper Constitutional triumphs have been in cases where the Court enforced Constitutional norms consistent with clear statutory consensus, reached after repeated public deliberations and reflecting an overlapping consensus within the polity.”
The first point—the development of what Eskridge and Ferejohn call “superstatutes”—is a major contribution to our understanding of American government but does not create any major normative difficulties. There is nothing in the text of the Constitution itself, after all, that forbids the creation of such statutes and no particular reason why the decisionmaking process that the Constitution establishes should not exhibit the stability that gives such statutes their quasi-permanent status. Quite possibly, the First Congress, which included many of the Framers, thought that it was doing something of this sort when it passed the Judiciary Act of 1789. The second point, however, is more difficult to justify. The influence of statutes appears to result from either (1) an absence of moral courage that leaves the Supreme Court vulnerable to popular pressure or (2) a lack of conceptual clarity that leaves the Court susceptible to nonconstitutional ideas. The Court has never admitted to either of these motivations, and it is unlikely to do so.
What is implicated by the idea that statutes can become part of our constitutional structure is the ongoing debate between constitutional originalists and evolutionists. Originalists argue that the Court should be guided by the original meaning of the document, as determined by the Framers’ actual intent or, according to more recent scholarship, the intent of those who ratified it. They definitively reject the idea that subsequently enacted statutes should affect constitutional interpretation. While the approach is generally considered incoherent as a matter of interpretive theory, the continuing support that it attracts among scholars and judges, and its quasi-canonical status among legislators and the general public, indicate its justificatory appeal. In contrast, those who believe that interpretation of the Constitution can change with changing circumstances, sometimes described as evolutionists, do not necessarily reject the notion that statutes can contribute to those circumstances. The problems for evolutionists, despite the descriptive strength of their position and the normatively appealing results that it achieves, are its difficulties of justification. Those difficulties are exacerbated if the Court’s decisions are not based on the Justices’ own, legally informed assessment of the relevant changes but rather on popularly enacted statutes and “an overlapping consensus within the polity.” If that is the basis on which the Constitution evolves, then how can one justify judicial review, and where is the control on the notorious tyranny of the majority?
This Essay proposes that statutes, particularly the superstatutes that Eskridge and Ferejohn so perceptively identify in A Republic of Statutes,have a third role beyond adding to our “small ‘c’” constitution and influencing interpretation of the “Large ‘C’” Constitution. That role is asan interpretation of the “Large ‘C’” Constitution—the document itself. The manner in which this interpretation occurs, it will be argued, satisfies the demands of both originalists and evolutionists. That is, it comports with the original meaning of the document, and it represents a response to changing circumstances. It will be further argued that viewing statutes as interpretations is preferable to the traditional versions of both originalism and evolutionism because it avoids their characteristic difficulties. In particular, it discerns the intent of the Framers or ratifiers in a theoretically coherent manner and identifies an evolutionary principle that can be justified in terms of democratic theory. Unlike originalism and evolutionism, however, this notion of interpretation by statute is not a complete account of constitutional interpretation. It covers only the interpretation of the important clauses—the ones that have produced major effects on our governmental structure.
Another issue in contemporary constitutional theory that A Republic of Statutes implicates is the role of nonjudicial actors. Some leading scholars—including Bruce Ackerman, Larry Kramer, and Mark Tushnet—have argued that Congress, the President, and the general populace have strongly influenced our understanding of the Constitution and that this influence is justifiable. Again, there is a sense in which this claim is uncontroversial. The Constitution is the law of the land and every public official should obey it; Congress simply should not knowingly pass an unconstitutional law and wait for the judiciary to strike it down. Similarly, public debate about constitutional law can be regarded only as a public virtue, a mark of an intelligent and engaged citizenry, and such debate is widely regarded as meriting the highest level of protection from the Constitution itself. The more contested assertion, however, is that nonjudicial actors can and should definitively determine the meaning of the Constitution and that they, and not the Supreme Court, should have the final word. One version of this assertion, generally called departmentalism, argues that each branch of government should interpret the Constitution for itself and within its own area of operation. A second, called popular constitutionalism, argues that the people at large possess this same power of independent interpretation and can overrule the courts through their collective actions.
Eskridge and Ferejohn are sympathetic to departmentalism and popular constitutionalism, but they do not subscribe to their more controversial conclusions. While they maintain the traditional view that “superstatutes are subordinate to the Constitution,” they assert that these statutes “exercise normative gravitational force . . . bending an ambiguous or even hostile Constitutional tradition to acquiesce in superstatutory innovations.” This space-shaping force results because statutes are products of political deliberation, a deliberation that simultaneously canvasses the merits of the policy at issue and secures legitimacy through participatory processes. Viewing superstatutes as interpretations of the Constitution provides both a normative and a pragmatic basis for this position. In normative terms, it means that these statutes are not merely deliberation on policy but at least potentially deliberation about the meaning of the Constitution itself. Whether they have this role is ultimately for the judiciary to determine; the possibility allows for other voices to be heard in constitutional analysis but preserves the unique quality of judicial review. In pragmatic terms, granting this role to statutes removes a good deal of the ambiguity that otherwise results from granting interpretive authority to nonjudicial actors because a statute is a formal legal document with a definitive text.
Part I of this Essay explains that the Constitution is necessarily understood as an intentionalist or purposive document. Part II then argues that this understanding of the Constitution means that statutes can sometimes serve as interpretations of the document rather than simply as external forces acting on interpretation or as substitutes for interpretation. Part III concludes the Essay by describing the way that a purpose-based approach that allows room for the interpretive role of statutes can mediate between the contending positions of originalism and evolutionism as modes of constitutional interpretation.
I. The Purposes of the U.S. Constitution
The way in which statutes can function as means of constitutional interpretation depends on the basic meaning of the Constitution—not the meaning of its particular provisions but what it means to have a constitution. This is a somewhat more general question than the usual inquiry in constitutional law. In the Supreme Court’s most famous statement on the subject—“we must never forget, that it is a constitution we are expounding”—the analysis consists of a change in typeface.
Edmund Husserl’s theory of phenomenology contains a concept of the constitutional process that offers a more helpful starting point. According to Husserl, creating a constitution is the process by which we intend the perception of the world that we perceive as all around us, that is, the common sense world or “life-world.” It is a conscious act and in fact is central to consciousness itself. Objects in the world do not exist for us until we perceive them, and in order to perceive them we must constitute them—that is, intend to perceive them, to interpret them, and to give them meaning. This tends to sound like idealism, but Husserl’s goal was to reject idealism, not by embracing realism, its philosophic opposite, but rather by getting past the dichotomy between the two as excessively metaphysical. All we know for certain, he argues, are our own thoughts, or present mental phenomena, but in those thoughts, the existence of the common sense world is presented as unchallengeable, or pre-given. That is not because the things that we perceive are really there, but because we constitute them as such. In answer to the obvious question about whether there are “things in themselves,” Husserl answers by again rejecting the concept as metaphysical and substituting the idea that our ability to constitute any particular object will approach a limit. We only know that we are approaching that limit on the basis of the intentional process by which we constitute the object. When we refer to the object as really there, or a thing in itself, we are actually referring to a limit of this sort.
Husserl’s phenomenology, like microeconomics, is a form of methodological individualism, so any effort to apply it to collective entities must be made with caution. But his discussion in this case, as in so many others, captures something that is central to the matter under discussion but easy to overlook because of its familiarity. Translated from epistemology into politics, it suggests that we should regard a constitution such as ours as an intentional act that produces consciousness. In drafting and ratifying a constitution, a group of people becomes conscious as a collective entity, not in any mystical sense that this entity can have thoughts in the way in which an individual does, but in the sense that it can make decisions and take action in the way in which a government does. Moreover, the political entity is aware, again in the sense of a decisionmaking process, not an individual consciousness, that it has constituted itself in this manner. Prior to the modern era, most political entities were regarded as the product of an ongoing tradition. France, Spain, or England were not constituted, but simply emerged or developed; if they were conceived as having a collective consciousness, or sense of purpose, that sense resided in the monarch or perhaps, for England, in the legislature. But when a government is created by a constitution, its collective consciousness—its existence as a polity—results from an act of intentionality.
Intentionality implies having purposes; that is, a conscious being takes action for a reason. If our constitution signals that we have an intended government—that is, a government that owes its existence as an entity to intentionality—then it has purposes. These purposes then give meaning to particular provisions of the constitution as enacted. In other words, what it means to have a constitution provides a basis for determining what the constitution means. Or, as John Marshall said, “we must never forget, that it is a constitution we are expounding.”
This is somewhat different from the usual approach to the U.S. Constitution. The general view is that the Constitution establishes a governmental process and imposes limits on the results of that process but leaves the formulation of substantive policy to publicly elected officials. One implication of this view is that elected officials and the judges who interpret the Constitution are engaged in different enterprises. It further implies that there is a certain antagonism between the two: that the judges’ principal role is to prevent elected officials from doing certain things they want to do. In contrast, the approach suggested here is that the Constitution embodies certain substantive purposes and that courts interpret, or should interpret, its particular provisions in a manner that advances those purposes. Elected officials are also engaged in advancing substantive purposes, more familiarly called policies, and this similarity of functions between them and constitutional judges creates the possibility of a more cooperative relationship between the two. While it certainly does not exclude the judges’ traditional role of placing limits on elected officials when their actions are seen as violating the Constitution, it suggests that in some situations the two branches will be involved in the same enterprise.
What are the purposes that animate the Constitution, and how can they be identified? The answer for our Constitution, or any genuine constitution, is necessarily historical. They are the purposes to which the Framers and ratifiers of our document were committed as a matter of their historical experience. Recent historical scholarship about the origins of the Constitution by Bernard Bailyn, Gordon Wood, Jack Rakove, and others is therefore relevant to this inquiry. It is not necessary to delve into the complexities of this literature at a preliminary level, however, because the basic purposes of the Constitution can be retrieved from documentary evidence.
The natural place to start is with the text of the Constitution itself. When we do so, however, we see a range of provisions that can be placed on a rough continuum from most specific to most general. At the specific end lies one of the longest and certainly least cited provisions in the Constitution, the latter part of Article I, Section 2, Clause 3, which specifies the number of representatives to be accorded to each state until such time as the first census is carried out. Obviously, it was necessary to include this provision in order to get the government started, and, just as obviously, it would have no ongoing significance. At the other end of the continuum are provisions like the Necessary and Proper Clause and the First Amendment that state propositions that could be expected to remain relevant as long as the Constitution is in force and that apply to a wide variety of situations.
The purposes that animate the document are not embodied in any specific provision, however. Rather, they appear in statements about the Constitution in its entirety. They are entitled to some sort of canonical status because the proponents of the Constitution, most of the people who wrote it and most of the people who ratified it, subscribed to those purposes. This is the basis for looking to the Federalist papers for the meaning of the Constitution, of course, but these writings were, in the final analysis, a series of newspaper articles written by two of the fifty-five delegates and circulated to a small minority of educated voters. The truly canonical statements come from the one part of the Constitution that comments on the document in its entirety and states its general purposes, namely the Preamble, and from the Declaration of Independence, drafted a mere eleven years before the Constitutional Convention and announcing the essential premises on which the new nation would be based.
It is only necessary to refer to two sentences. They are the best known, most familiar formulations of the Constitution’s guiding purposes, the statements that all Americans know and that have reverberated throughout the course of our history. The first is from the Declaration of Independence.
The second sentence constitutes the Preamble to the Constitution in its entirety:
There is a third quotation, this time consisting of two sentences. It comes from the Gettysburg Address, which was delivered during our greatest constitutional crisis and states President Lincoln’s understanding of the constitutional basis of the nation that he was fighting to preserve, and for which he had sent so many of its citizens to their deaths:
While this obviously cannot be taken as direct evidence of the Framers’ intent, it can be fairly regarded as the understanding of that intent at a fairly early and critical point in our history, and one that has since been treated as a definitive statement of the nation’s founding principles.
Much else could be said about the intellectual background of the Constitution, and our understanding of it over the course of our history, of course. Even at the rather rudimentary level of these painfully familiar quotations, however, at least four purposes can be discerned. The first is liberty: the Declaration presents liberty as an “unalienable right” and as one of the purposes of government, the Preamble reserves its most elegiac language for it, and the Gettysburg Address identifies it as the nation’s animating idea. The second is equality, stated in both the Declaration and the Gettysburg address in the same gendered form: “all men are created equal.” The term is not used in the Preamble, but it seems a fair way to read the term “Justice” that appears instead. A third purpose can be identified as national unity and effective national government. This is quite explicit in the Preamble, which not only aspires to make the Union “more perfect” but also mentions the pragmatic concerns about civil order (there had been several uprisings during the Confederation period), national defense (there were worries about European intervention), and the general welfare (the economy was a mess) in addition to liberty and justice. It is almost as explicit in the Declaration, which not only states that government has an affirmative duty to secure life and liberty but also includes “the pursuit of happiness,” which would presumably mean the security and prosperity that the Preamble articulates. And it is prominent in the Gettysburg Address, as one might expect given the circumstances.
A final purpose that can be discerned from these three statements is that our nation, and our government, is one that we have created ourselves. The Declaration says that governments are instituted “among Men” and derive “their just powers from the consent of the governed.” The Preamble says: “We the People of the United States . . . do ordain and establish this Constitution . . . .” Lincoln, referring to the Declaration, emphasizes that it was “our fathers” who brought forth the new nation and ends by describing our government as “of the people, by the people, for the people.” Interestingly, none of these canonical texts mentions “democracy,” which is the word that we would tend to use today. One reason is that the first two documents were written during the eighteenth century, when “democracy” generally meant direct democracy of the Athenian sort and was distrusted as the political system of contentious, chaotic, self-destructive Athens as opposed to a system of mixed government like that of dignified, orderly, and victorious Sparta. The Framers were very aware that they were creating a representative government, not a direct democracy, and many of the mechanisms that we have dispensed with or continue to criticize, such as indirect election of senators, the Electoral College, and the presidential veto were based on the perceived importance of that distinction. By the time of the Civil War, Athens had been rehabilitated as the land of liberty and creative culture, and the term democracy had lost most of its pejorative associations; nonetheless Lincoln did not use it. Since our current tendency to conflate self-government and democracy creates conceptual problems, however, it may be best to avoid this term for present purposes.
II. Purpose-Based Interpretation and the Role of Statutes
Recognizing the U.S. Constitution as an intentionalist or purposive document, as stated earlier, creates the possibility of a more cooperative relationship between elected officials and the Constitution’s judicial interpreters. One possible way to view this relationship is that the judiciary is engaging in the sorts of actions that we generally associate with elected officials. Liberty, equality, effective government, and democracy can be seen as substantive policies, and the courts, in implementing these policies, can thus be seen as making policy in the same way that the legislature and the executive do. In fact, most political scientists adopt this view; but the argument in this Essay moves in the opposite direction. The policies that have been identified are constitutional policies; they animate the document and define its basic intentionality. When judges implement these policies, they are carrying out their traditional interpretive role.
The converse is also true, of course. When elected officials engage in a cooperative relationship with the judiciary on the basis of these policies, they are engaging in the sorts of actions that we generally associate with constitutional judges; they are interpreting the Constitution. It is perhaps less necessary to argue that such actions are proper on the part of these officials. As stated earlier, no one asserts that elected officials should not interpret the Constitution. In fact, they are expected to do so and would be regarded as performing defectively if they took obviously unconstitutional action. What needs to be argued is that the courts should treat the legislative enactments of elected officials as interpretations and that in paying attention to statutes they are not engaging in normatively questionable compromises with political reality, but rather are advancing the enterprise of elucidating and implementing the Constitution’s basic meaning.
In order to trace the contours of the cooperative relationship between the judiciary and elected officials, and to articulate the reasons why judicial reliance on that relationship can be normatively justified, it is necessary to explore the way that purposes operate in the interpretative process. The standard view would be that a purpose has a fixed or definitive meaning and thus that the Framers, or the ratifiers, had a particular idea of liberty, equality, or effective governance in mind at the time the Constitution was written or adopted. If we follow Husserl, however, a fixed purpose of that sort would be the thing in itself, a concept that he rejects as metaphysical. Rather, a purpose represents the motive force of the process by which we constitute meaning through intentionality. That process proceeds over time and does not conclude at any fixed point but rather approaches a limit. As Husserl suggests, we can only know we are approaching that limit on the basis of the process itself. In other words, the meaning of our purposes, the full significance and implications of ideas such as liberty, equality, or effective government could not have been known at the time that people acted on those purposes to create the Constitution. These purposes reveal their meaning to us over the course of time. It is through experience, through acting on the basis of these purposes, that we learn the contours of our commitments.
The first way in which our purposes reveal themselves over time involves the manner in which they are implemented or instantiated. To have a purpose, and to be committed to that purpose, means that one is willing to give precedence to its consequences over other considerations and that one is willing to accept inconvenience or disruption in order to achieve one’s larger goals. But this commitment does not mean that one is willing to do so right away, or without hesitation. People often commit themselves to sobriety well before they actually manage to stop drinking, or to dieting before they finally can wean themselves away from pizza and ice cream. It is inherent in the nature of a purpose that one only gradually confronts its consequences and accepts its implications for the conflicting aspects of one’s life. To do so, one must not only state one’s purpose, and not only accept it, but actually live with it for a certain amount of time.
As an example of this process in the constitutional arena, we can consider how the constitutional purpose of equality has been instantiated over time with respect to race. Washington, Jefferson, Madison, and a number of the other Framers, although slave owners themselves, were aware at the time that slavery was wrong and that it conflicted with the purpose of equality that they had articulated in the Declaration of Independence, the Preamble, and the Bill of Rights. Many of the people who voted to approve the Constitution realized this as well. But the United States had inherited slavery from British imperial policy, and the institution was built into the basic framework of the American economy to an extent that made its abolition enormously difficult from a practical perspective. In fact, slavery was so embedded in the economy that those Framers who recognized its conflict with the equality principle felt nonetheless compelled to accept constitutional provisions that acknowledged and protected it: the Three-Fifths Clause, the 1808 Clause, and the Fugitive Slave Clause.
The Supreme Court’s performance regarding this admittedly difficult issue was unimpressive, to say the least. The explicit constitutional provisions certainly limited its options, but another reason, certainly explicable but nonetheless open to normative critique, is that it failed to pay attention to statutory and state constitutional amendments that were consistent with the purposes that animated the Constitution. During the antebellum era, nearly every Northern state abolished slavery—in a few cases, such as New York and New Jersey, despite having fairly significant slave populations—but the Court derived no guidance about the possibilities of abolition from these enactments. One problem, perhaps, was that federal legislation was almost exclusively directed toward creating separate free and slave regions of the country and validating slavery within the latter. Even more seriously, the Court seems to have viewed any effort on its part to intervene in this situation as contrary to national unity, a component of the Constitution’s effective governance purpose that has faded from significance in modern times. Whether the Court could have acted differently, whether it could have contributed to an incremental destabilization of the South’s slave economies, and whether it could have done so without endangering national unity, is highly speculative. Certainly, it was not compelled to decide Dred Scott as it did; nor did the Court need to strike down state laws that interfered with the return of fugitive slaves. Such decisions are not open to criticism because they were subsequently overruled by amendment (no one regards Chisholm v. Georgia as the Supreme Court’s moral nadir) but because they so seriously violated one of the Constitution’s purposes without significantly advancing any other.
After the Civil War, Congress acted quickly and decisively to establish and guarantee equal rights to African-Americans by enacting the Civil War Amendments, by enacting the Civil Rights Acts in 1866 and 1870, and by enforcing those provisions through federal administrative agencies such as the Freedmen’s Bureau. But Southern opposition induced the federal government to abandon the enforcement process. The Southern states then enacted apartheid laws covering nearly every activity, as well as legal provisions designed, by indirection or unequal application, to deny African-Americans the rights they had been granted. This denial of rights was enforced by private violence and condoned or encouraged by governmental action. At the same time, however, Northern states were enacting civil rights statutes. Massachusetts led the way in 1865; thirty years later, some seventeen Northern states had enacted legislation of this kind. By doing so, they not only advanced the constitutional purpose of equality but also demonstrated its practicality, albeit to a limited extent. An additional demonstration was the massive migration of African-Americans into Northern cities. While they tended to cluster, and to be restricted, to so-called urban ghettos, they were at least free of legal disabilities and, by voting, demonstrated that they could be politically active and effective citizens.
The Court’s performance with respect to these developments was only marginally better than its antebellum failure. For the most part, the Supreme Court validated the Southern states’ action, most famously in Plessy v. Ferguson, which upheld “separate but equal” accommodations, but also in the Civil Rights Casesthat struck down the Civil Rights Act of 1875, and in Cumming v. County Board of Education, which found the provision of unequal educational facilities valid under the “separate but equal” test. These decisions can be used to delineate the difference between the constitutional role of statutes being advanced here and other theories of interpretation that incorporate statutes. Departmentalism, popular constitutionalism, and even milder recommendations that the Court should pay attention to public attitudes, such as Eskridge and Ferejohn’s, do not distinguish between the statutes enacted in the South and those enacted in the North. Both groups of statutes reflect popular opinion, and both should presumably be given respect, or even definitive force, by the Court. But according to the approach suggested here, statutes are relevant to Supreme Court decisionmaking only if they interpret the Constitution, and they interpret the Constitution only if they are consistent with one of its primary purposes. Thus, the Northern statutes, which advanced the goal of equality, should have guided the Court’s own decisionmaking, while the Southern statutes, which opposed equality and served no other purpose, should have been given no weight in the Court’s determinations. On this basis, it becomes possible to say that the decisions made during this period were simply wrong. The Court should have known better, as indicated by the enactment of state statutes during this period that were more consonant with the Constitution’s commitment to equality.
The same point can be made with respect to Brown v. Board of Education and its successor cases, when the Court finally implemented the equality purpose in the area of race. In reaching its conclusion in Brown, the Court overturned its prior decisions in Plessy and other cases. One way to explain this is to agree with the judicial politics scholars that the difference simply lay in the different ideologies of the Justices, the sorts of people chosen by Roosevelt and Truman rather than by Hayes, Cleveland, and Harrison. Another is to say that the Court was persuaded by changing public attitudes, and still another is that the Court changed its position based on changing circumstances. None of these accounts, however, is satisfactory on a normative basis. The problem with the first is obvious, and the problem with the second perhaps equally so, unless we are really willing to abandon the judiciary’s role of placing limits on the results that the political process can reach. The third explanation can be normatively valid in a variety of cases; the development of the penitentiary requires us to rethink the meaning of the Cruel and Unusual Punishment Clause, just as the invention of the airplane impels us to add a new division to the armed forces. But nothing of normative significance changed between 1896 and 1954; apartheid was as wrong in the first year as the second, and the fact that it was wrong was conceptually available to people at that time. What had changed was the understanding of the way the Constitution’s purposes could be implemented by law.
This view, unlike the others, regards Plessy as a definitively erroneous decision because it failed to advance one of the Constitution’s basic purposes in a setting where it might have done so. Eskridge and Ferejohn treat Brown as the beginning of a process. “From our theoretical point of view,” they write, “Brown’s greatest contribution was that it was deliberation-inducing.” That is certainly true, but it also seems true that Brown was the culmination of a process, the process by which the Supreme Court recognized that apartheid violated the Constitution’s basic purpose of equality. It was preceded by several Supreme Court decisions that took halting steps toward integration, primarily regarding public law school students, that is, students so far removed from childhood that their parents were unlikely to get particularly upset. More important, perhaps, were the Northern statutes that interpreted the Constitution’s equality purpose in a different, and increasingly more appealing, manner. Perhaps most important was President Truman’s executive order integrating the armed forces. At first, the order was implemented with “all deliberate speed,” but the increased need for troops as the Korean War intensified led to more rapid integration; by 1954, the process was largely complete in the sense that no unit was more than one-half African-American. This success not only demonstrated the practicality of integration but also revealed integration as a valid and enforceable interpretation of the Constitution.
Given that the purposive view of the Constitution provides a normative framework for concluding that certain cases are wrongly decided, it might be argued that the failure to implement fully the consequences of a recognized purpose is a retreat or surrender, rather than a question of interpretation. Occasionally, this may be true. Perhaps, as a phenomenological matter, the Supreme Court Justices were simply unwilling to maintain their position that virtual child pornography is protected by the First Amendment after Congress indicated its displeasure with this decision by passing the PROTECT Act, although it is also possible that the Court has internalized the growing scholarly support for discursive strategies. But in most cases, and Plessy is probably among them, the error is one of interpretation, not conscious embrace of error. Judicial decisionmaking is an exercise of governmental authority, not an abstract inquiry. The Court must decide how a constitutional provision is to be implemented, and the means of implementation will generally affect its understanding of the provision. Consideration of underlying purposes provides a normative standard for assessing the Court’s conclusion but does not necessarily change the result. The Justices may still perceive that the provision in question cannot be implemented in a particular manner—that it does not reach the conduct that is alleged to violate the Constitution. Over time, however, and sometimes in light of statutory enactments, they may come to recognize that the purpose can be more fully achieved and that it can be applied in situations where it previously seemed impractical or unwise to do so.
There is, however, a still deeper way that our purposes reveal their meaning to us over time. Beyond the process of confronting the implications of the purpose is the scope of the purpose, the range of situations that the purpose implicates. It is not only the obstacles that are difficult to imagine when the purpose is first adopted but also the possibilities that the purpose involves. Husserl points out that being in a particular place, either in space or time, is a reality that powerfully affects our thoughts as well as our sentiments. The belief that we can anticipate the way we will think, feel, and react is in many cases an illusion; once we are in the situation, once a “there” has become our “here,” and a “then” has become our “now,” as Husserl says, we inevitably think in different terms.
One example of this deepest second aspect of temporal revelation is gay rights. Unlike the abolition of slavery, equal treatment of gays and lesbians was not within the conceptual purview of the Framers or the ratifiers. We simply do not know what those who expressed such enthusiasm for liberty, and who voted so willingly for the Constitution because they were convinced that it instantiated that purpose, would have thought had the issue been brought to their attention. It would take two hundred years before people realized that liberty means the liberty of an adult to engage in any type of consensual sexual relations with any type of adult partner other than a close relative. To perceive this as a form of liberty one needs to be “here,” in the modern era, with modern notions about sexuality. But nowthat we are indeed “here,” we recognize this as a form of liberty—not because the Constitution has evolved but rather because our understanding of the purpose that it embodied from the outset has evolved.
The process by which gay rights statutes were enacted in the United States is described by Eskridge and Ferejohn and has been extensively described in other work by Eskridge. To summarize very briefly, the process began as a social movement, that is, the mobilization of people in civil society by policy entrepreneurs. These groups, supported by changing attitudes in the general public, were then able to obtain the passage of laws that decriminalized sexual relations between consenting adults of the same gender in the majority of states and antidiscrimination laws in employment and housing in a smaller number of states (but many of the largest and leading commercial states, such as California, New York, and Illinois). President Clinton, although precluded by Congress from exercising the kind of leadership that Truman had displayed with respect to African-Americans, contributed to the general trend by issuing a Defense Directive that instructed the military not to ask applicants about their sexual orientation (the notorious “Don’t Ask, Don’t Tell” policy).
In 1986, the Supreme Court upheld the constitutional validity of state laws criminalizing homosexual acts in Bowers v. Hardwick. Seventeen years later, in Lawrence v. Texas, it overruled Bowers, declaring, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.” Eskridge and Ferejohn treat the various state enactments, and Clinton’s Directive, as a change in the political climate that enabled the Supreme Court to alter its position on the constitutionality of criminalizing homosexual acts. The argument here gives these enactments a somewhat different role. They were interpretations of the Constitution, not of its literal language, but of its underlying purposes of liberty and equality, which overlap on this issue. As such, they influenced the Court, but not on the basis of political practicality or as a matter of public deliberation. Rather, they helped reveal the meaning of the purposes that animated the Constitution, the basic intentionality that motivated its design and ratification. That is why the Court said that Bowers was wrong at the time it was decided, as well as at the time when it was reconsidered.
In fact, Bowers would have been wrong had it come before the Court in 1789 because it violated the Constitution’s purposes. But the idea that homosexual relations were encompassed by liberty, and that gays and lesbians should be treated the same way as heterosexuals, was not within the conceptual framework of 1789. That does not mean that the case should have been decided differently in 1789 as a normative matter but simply that the Court would have gotten it wrong, as a historical matter. About two hundred years later, the Court still got it wrong because it had not come to understand the full meaning of the purposes that motivated the document it was interpreting. By paying attention to rival interpretations embodied in state statutes, the Justices came to the realization that homosexuality was truly encompassed within the ambit of the Constitution’s purposes.
The issue on everyone’s mind in this area is same-sex marriage. While the same trend toward liberty and equal treatment can be discerned in state enactments, that trend is much weaker, and there is a strong countertrend represented by the Federal Defense of Marriage Act, California’s Proposition 8, which overturned a California Supreme Court decision that equal protection required the recognition of same-sex marriage, and statutes and constitutional provisions in a number of other states. Should the Court pay attention to these enactments or to the fact that the general trend of enactments seems to be running against same-sex marriage, in the same way that it paid attention to the decriminalization laws? The answer should not depend on adding up the number of enactments on each side, or even on the general political climate that these enactments reflect. Rather, the question is whether the various enactments are correct interpretations of the Constitution, that is, whether they properly advance the Constitution’s purposes. Some current theories of judicial review, such as Bruce Ackerman’s, give considerable weight to popular sentiment but recognize that judges must assess that sentiment on the basis of a theory of constitutional interpretation rather than simply following the views of the electorate. If judges are guided solely by popular sentiment, then there is no rationale for giving them the authority to overturn the decisions of the officials who normally control the government and are expected to take popular sentiment into account.
Have we reached the limit of liberty and equality? Are we at the point where the process by which the meaning of our Constitution’s purposes, as revealed to us by history, has gone as far as it should go? If so, the Defense of Marriage Act is a correct interpretation, and the Court should not strike down laws that forbid same-sex marriage. But the Court could also decide that the enactments validating same-sex marriages, even if they are fewer in number, and even if some of them have been countermanded, reveal the meaning of the Constitution’s purposes. It could decide that those purposes have not been fully realized, and that our political adventure will continue into an unknown but favorable future.
III. Originalism Versus Evolution
If statutes can interpret the Constitution, there remains a question as to what sort of interpretation is involved, and, more specifically, where that mode of interpretation stands in terms of the current controversies about constitutional interpretation generally. As indicated at the outset, the two leading controversies, both of which are implicated in the idea that statutes can interpret the Constitution, are originalism versus evolution and judicial supremacy versus departmentalism or popular constitutionalism. This Essay will conclude with a brief discussion of each issue.
An approach that permits subsequently enacted legislation to play a role in determining the Constitution’s meaning would appear to be committed to the notion that the Constitution evolves over time. But it parts with evolution and allies itself with originalism in arguing that the changing effect is not the result of an inherently developing process or even the second-order intentions of the Framers, as Jefferson Powell has argued. Rather, the changes arise from the intrinsic intentionality of the Constitution and the purposes of the Framers and ratifiers that resulted from that intentionality. Those purposes motivated the design and ratification of the Constitution from the beginning, and it is the effort to explicate and apply those purposes that makes a statute count as an interpretation. Jack Balkin has advanced a similar argument, but his view is that each major constitutional provision has its own principle that interpreters must discern. The approach suggested here is that there is a small number of guiding purposes and that those purposes are activated in some cases but not in others.
This approach provides a more plausible account of what originalism might mean. The ordinary notion of intent that we apply to daily activities is that a particular result must be present in the actor’s mind or at least readily available once the actor focuses on the issue. But in the sentence “What did Madison intend with respect to the constitutionality of abortion?” there is, after all, a nonsense word, and that nonsense word is “Madison.” For “Madison” to confront this issue, which was not on the agenda in his own day, he would have to have lived to be 250 years old, or be magically transported from his own time to ours. But we do not know how a 250-year-old person thinks or how someone thinks when he is transported into the future. For “Madison,” we can substitute “all the Framers” or “all the Framers plus the people who voted for the Constitution in the states” and the problem will remain the same.
The idea that constitutional purposes would reveal their content and their meaning gradually, with the progression of time, not only provides an escape from this conundrum but also may reflect the actual understanding of the Framers more accurately than any more specific interpretation of the constitutional language. The Framers knew perfectly well that they were drafting the document for an unknown future, whose features they themselves could not fully predict. This sense of an unfolding future that would usher in a new and better world was a standard Enlightenment perspective. A few years after the Constitution was drafted, Antoine-Nicholas de Condorcet, while in hiding from the Terror, wrote his encomium to human progress. In times to come, he predicted, equality between nations and within nations would increase, women would achieve equality with men, slavery would be abolished, and human rights would be secure. Aspirations of this sort were thus conceptually available at the time; Franklin and Jefferson knew Condorcet quite well and were familiar with his work. The Framers were aware that they were venturing upon uncharted seas: no one had ever written a constitution for a large, diverse nation like the United States. There is no reason to think that they, as children of the Enlightenment, were incapable of thinking in similar terms or of harboring similar hopes for the regime they were creating.
At the same time, the suggested approach preserves crucial features of the evolutionary approach, most obviously the idea that the interpretation of the Constitution changes over time. Eskridge and Ferejohn refer to this as a horticultural approach to constitutional interpretation. When we look back over the course of our history, we see transformations that render any theory of fixed meaning implausible. These changes are not merely technological changes, like the invention of the airplane, that might be accommodated in some imaginative reconstruction of eighteenth-century attitudes (for example, Madison wanted an effective military, so he would have included an air force had he known about airplanes). They are changes in the basic structure of government, such as the rise of administrative governance and the development of public schools, penitentiaries, and national parks; changes in social structure—not only abolition, which Madison probably anticipated, but also industrialization and urbanization, immigration from Eastern Europe and Asia, the women’s liberation movement, and the gay rights movement; and changes in the challenges that confront the nation, such as world leadership, globalization, nuclear terrorism, climate change, and environmental degradation.
A theory of interpretation that focuses its originalism on purposes allows accommodation to change for at least two reasons. First, as has been described, the meaning of a purpose will generally reveal itself only over time and in response to circumstances that test both its implementation and its scope. The phenomenological structure of thought suggests that it will be virtually impossible for a decisionmaker to anticipate all of the applications of the purpose that it has adopted in advance. These new applications do not mean that the purpose has changed, however. Rather, they are inherent in the act of committing oneself to a purpose: they are what it means to have a purpose to which one holds fast over a long period of time and that one expects to govern people who are not yet born. This is a natural consequence of moving originalism to the higher level of generality that a purposive approach entails. While preserving the original understanding at the level of purpose, it allows for change at the level of application—not as a grudging accommodation to practicality but as the essential expression of that understanding.
Second, because the purposes of the Constitution are general commitments that are felt throughout society, many of the changes that occur, not only in governance but also in civil society, will be motivated by those purposes. Thus, the changes will often be of a sort that supports the purposes of the Constitution and brings them to life. This is, of course, the basis of the idea that actions taken by nonjudicial actors, and even nongovernmental actors, might be relevant to the interpretation of the document. Generally speaking, a correspondence of this sort between the interpretive function and the actions of government officials and private persons will always be true; if it were not, those actors would ignore the Constitution, rewrite it, or overthrow the whole regime. That does not mean that all decisions or attitudes by nonjudicial actors will be governed by the original purposes that motivated the creation of the constitutional regime. Other motivations—including self-interest, uncertainty, fear, and so forth—will often lead people to ignore or compromise their purposes. Over time, however, those purposes, if they are truly felt and consistently maintained, will tend to determine the general pattern of both governmental and private action in relevant areas.
This last consideration leads directly to the issue of judicial supremacy versus departmentalism or popular constitutionalism. The approach suggested here could be allied with either, but to treat it as a form of departmentalism or popular constitutionalism gives up something very valuable, namely, the only governmental device since ancient Hebrew prophecy that can systematically and peacefully constrain a ruler who wields the monopoly of legitimate power. As just suggested, statutes are animated by a variety of motivations, only some of which will be consistent with the purposes of the Constitution. That will be true regardless of whether the courts have the authority to strike them down. But if the courts lack that authority, there is no constraint on whether the statute in question is truly inconsistent with the basic purposes on which the constitutional regime was founded. At the same time, recognizing the role of statutes in constitutional interpretation gives elected officials, and the public that elects them, a normative role in the interpretation process that is absent from other approaches. As stated above, it recognizes a cooperative relationship between the courts and nonjudicial actors. It insists that the courts listen to these actors in a more serious, and more normatively grounded manner, than might otherwise be the case.
Implicit in a theory that constitutional interpretation should be based on substantive purposes whose implications we accept, and whose meaning is revealed over time, is the recognition that we do not live at the end of history. There is no reason to think that our present moment is historically privileged—that we have reached the end point of a process that has thus far extended over the two centuries of our experience as a nation. What then is the future of constitutional law according to the theory advanced in this Essay? Where might our commitment to an effective national government, to equality, to liberty, and to representative democracy take us in the century to come?
One possibility is toward recognition of so-called positive rights. In contrast to negative rights against government oppression, these are positive demands that individuals can make upon the government—the provision of minimal subsistence, habitable housing, basic health care, and adequate education. We would not even be the first nation to codify these rights, as we were to codify the negative rights; several modern constitutions, most notably South Africa’s, include positive rights. Implementing them, of course, is a more complex matter, fraught with practical difficulties. This is an area in which the courts might benefit from treating statutes as interpretations of the Constitution. By implementing measures that seem initially unwieldy or complex, and by extending benefits to additional populations, statutes like the Patient Protection and Affordable Care Act might show courts the path by which such positive rights can be established.
There are various other possibilities as well, such as the effect of the Internet on representative democracy, the need for effective government to save us and our posterity from environmental catastrophe, and the consequences of the technological transformation of the human body on our conception of equality. The most basic lesson, however, is that there will be developments that we simply cannot predict or conceive of at present. Despite this advance into an unknown future, we can promise ourselves that we will remain committed to our purposes of equality, liberty, and effective government. The idea of this Essay is that we can also reassure ourselves that there is a theory of constitutional interpretation that will allow us to instantiate that commitment in our legal system.
Edward L. Rubin is University Professor of Law and Political Science, Vanderbilt University.
Preferred citation: Edward L. Rubin, How Statutes Interpret the Constitution, 120 Yale L.J. Online 297 (2011), http://yalelawjournal.org/forum/how-statutes-interpret-the-constitution.