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Wednesday, June 04, 2014

Constitutional Legitimacy and Constitutional Interpretation

This is the fourth summer in which I am teaching a summer seminar on constitutional theory (which I like to bill as “the most fun one can possibly have in a law school at 7:30 on a Friday morning”).  One of the things I’ve picked up along the way is that my students find themselves much more comfortable assessing the array of competing approaches to constitutional interpretation if we spend some time at the outset discussing the question of what it is that legitimates the Constitution in the first place. 

The question of constitutional legitimacy and its connection to interpretation is something that, to my way of thinking, assumes much less prominence in con law scholarship and teaching materials than it should.  I’ll focus on teaching.  Constitutional law is frustrating for a good chunk of students due to its lack of firm footholds.  In pretty much everything else in the first-year curriculum there’s at least rough agreement on the aims of the body of law under study, and thus there are accepted premises from which to argue.  In Con Law, in contrast, almost everything is up for grabs. Gerhardt, Griffin, Rowe, and Solum (whose Constitutional Theory book I use) capture this nicely in their opening sentences: “A colleague likes to say that ‘the trouble with constitutional law is that nobody knows what counts as an argument.’  It may be more accurate to say that plenty of people think they know what does or should count, and that they often disagree.”

It seems to me that it’s critical to a full understanding of constitutional law and argumentation to recognize that our collective commitment to pay attention to the document is necessarily based on something outside the document.  The point has been made by plenty of people.  Whether it’s phrased in terms of preconsitutional rules (as discussed by Richard Kay or Fred Schauer), a sociopolitical commitment (Daryl Levinson), or some sort of weak consent or acquiescence (Michael Dorf), in an important sense we pay attention to the Constitution because we’ve decided to pay attention to the Constitution, or at least haven’t collectively decided not to pay attention to the Constitution. 

It follows, or so it further seems to me, that the nature of the mechanism by which we commit to the Constitution, and the nature of the commitment it entails, are both important to the divining the meaning of the document itself.  If it’s the consent (loosely defined) of the present-day “we the people” that matters, then we will likely think very differently about how we interpret the document than if it is the consent of the framing generation that’s the key.  (Of course, even if the operative commitment is necessarily a present one that commitment could well incorporate past commitments.)  And maybe we’d conclude, with Judge Posner, that this pursuit leads inevitably to leaps of faith and that pragmatism is the only way out.  It is not so much the destination that matters as the journey.  There is value in understanding that the disagreements that manifest themselves in the justices’ opinions are sometimes products of differences that go to the very nature of constitutionalism.

Teaching-wise, I like to open the semester in Con Law by introducing the fact that the Constitution was, in a sense, an illegal document, in that it was drafted by a group that knowingly exceeded its charter and was ratified via procedures that did not comply with the requirements of the Articles of Confederation.  This allows me to introduce the suggestion that it’s nothing within the Articles or the Constitution that leads us to pay (or not pay) attention to them.  Further, whatever it is that leads us to recognize the Constitution as the supreme law of the land rather than an illegal document probably has something to say in helping to critically approach questions about how we should interpret the document, including the appropriateness of things like doctrine, original meaning, tradition, and so on as tools of constitutional analysis.  A quick check of my bookshelf suggests that perhaps forty percent of Con Law case books open with the history of the Constitution’s drafting, that only a few of those reference the “illegality” dynamic, and that only one (Stone, Seidman) points in a significant way to the connection I’ve discussed here.

This is a big can of worms, and there’s much more to say, but in the hopes that I might not yet have crossed the tl;dr threshold I’ll simply note that this seems like a significant oversight.  And not only in the teaching terms that I’ve mostly discussed, but also in the sense that I think a lot of con law scholarship would benefit from a more express recognition of the implications of the connection between legitimacy and interpretation.

Posted by Chad Oldfather on June 4, 2014 at 02:22 PM | Permalink


Does illegitimacy foster ill-interpretation? Since originalism came into vogue, it has been fostered with the discovery of new evidence in support of originalism. We discovered the "Lost Constitution" only recently. The newly discovered evidence consists mainly of what certain people said way back that may differ from the old - or original - evidence of these same - and other - persons that were relied upon, resulting in the discovery of what was the original meaning (determined by various standards that change from time to time) that differs from what we thought was the original meaning.

I took con law in the Fall of 1952 with Thomas Reed Powell. Most of the course involved the Commerce Clause. As I was getting ready to finish law school and prepare for the bar exam in 1954, Brown v. Bd. of Educ. came down. Con law was definitely changing course.

Posted by: Shag from Brookline | Jun 5, 2014 8:17:33 AM

Great post. I begin with a discussion of the role of history and distortions of the past (illustrated with medieval paintings of the classical world). We discuss the meanings of the third word of the preamble, then and now. And yes, the illegality of the Constitution is the pivot, because "we consented" is the standard response from students and commentators alike to the challenge you outlined.

Posted by: John Bickers | Jun 5, 2014 4:57:34 PM

In 1955 Thomas Reed Powell presented the James S. Carpentier Lectures at Columbia: "Vagaries and Varieties in Constitutional Interpretation" (published by Columbia University Press). In the closing two pages (214-215) Powell discusses the matter of legitimacy of the Constitution and raises some of the issues on the adoption of the Civil War Amendments. (Available via Google Books)

Back in the Fall of 1952, I don't recall mention of this by Powell during his course.

Posted by: Shag from Brookline | Jun 5, 2014 8:59:57 PM

There is a lot of literature on the ratification of the Civil War Amendments, to follow-up on Shag (for those interested, there are various interesting book reviews of Powell's book available online), including providing suggestions on how the means used were legitimate. This was touched upon, e.g., by a recent new bio of John Bingham by someone who blogs at Concurring Opinions and Balkanization.

Madison in Federalist addresses how the Constitution overrode the unanimity rule required in the Articles of Confederation to amend. This was done mostly in passing. Still, when the Constitution itself blithely appears to override a clear command of the "constitution" in place at the time, it does suggest some degree of flexibility might be the "original understanding" as to applying constitutions generally.

Posted by: Joe | Jun 6, 2014 10:01:32 AM

To follow up on the point raised in the closing paragraph of Joe's comment, how is this viewed by originalists, by non-originalists?

Powell's "Vagaries ... " lectures were delivered in 1955 when originalism was not a hot con law issue. The Warren Court had handed down Brown v. Bd. of Educ. in the Spring of 1954. In 1955 the direction of the Warren Court may not have been clear. Powell does not focus on the Warren Court. When I took con law in 1952, there was no mention of originalism (which surfaced in the early 1980s). At page 213 of the published lectures, Powell said, in part:

"I am not one who favors the reporting of constitutional law by invoking the various constitutional clauses as chapter headings. The dictionary method of cataloguing the meaning of words seems to me undesirable when various clauses may bear upon the same issue and when it is not the meaning of words that usually determines the decisions." [The paragraph continues on page 214.]

Today the battle is between originalists (of varying stripes) and non-originalists in the search for the Holy Grail of Constitutional Interpretation/Construction. As I noted in an earlier comment, newly discovered evidence comes about so many years after the original Constitution/Bill of Rights and the Civil War Amendments fueling this battle. How long will this battle continue?

Posted by: Shag from Brookline | Jun 6, 2014 11:43:41 AM

Justice Black appealed to history (colored by his assumptions) and Charles Fairman for one didn't think he did a good job there as to the 14A. Did Prof. Powell have anything to say about that sort of thing which some might see as a form of originalism?

Posted by: Joe | Jun 6, 2014 5:57:47 PM

Joe, back in the fall of 1952 in Powell's con law course, the concept of originalism did not come up. And there was little if any discussion of incorporation of the Bill of Rights via the 14th A. As I stated earlier, the Commerce Clause is what we spent most of our time on.

In "Varieties ... " there is a single mention of the Warren Court involving a VA tax law on corporations. (Railway Express Agency v. Virginia.) The minority opinion of Justice Clark was joined by CJ Warren, Justices Black and Douglas. A review via the Index was not fruitful regarding your question. The index does not list incorporation or the Fourteenth Amendment, although it does list some of the other Amendments.

"Varieties ... " was put in published form following Powell's demise by Paul Freund, William Warren and others. At page 212 the paragraph beginning: "The is the close of the appointed series, ... " to the end (page 215) perhaps should have been separated as concluding remarks. They are worthwhile reading. I have only quoted a limited portion in earlier comments. But I don't think Powell was in any sense an originalist.

Over at the VC, Larry Tribe has guest posted on his new book (with another) that seems to express somewhat similar concerns with interpretation. Tribe finally gave up on his treatise on con law because of the difficulties involved, similar to the difficulties raised by Powell in "Varieties ...."

So the search for "The Holy Grail of Constitutional Interpretation/Construction" continues.

What I most admired about Powell back in the Fall of 1952 was that on a given issue he would not hesitate to say "I don't know." Compare this to the current crop of constitutional scholars. Back then after a class I asked him how the Court might rule on a case involving baseball in one of the federal trial courts. He said, as closely as I can recall, "I don't know. I stopped years ago trying to figure out what those bozos might do." "Bpzps" was not part of my vocabulary at the time. Powell knew personally and well some of the bozos. I wonder what Powell might think of the current bozos.

Posted by: Shag from Brookline | Jun 7, 2014 8:09:36 AM

I appreciate it.

Posted by: Joe | Jun 7, 2014 8:43:52 AM

Thanks for using our book! It was a pretty full revision this time around.

Posted by: Stephen Griffin | Jun 7, 2014 12:43:25 PM

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