Chief Justice Roger Taney, writing in 1857, looked backward to the ethos of the 1787 Constitution and reasoned that the Founders had originally intended the Constitution to protect slavery and to ensure the continued subordination of an inferior black race. Consequently, the Taney Court invalidated the Missouri Compromise of 1850 (banning slavery from much of the territories) as a deprivation of property without due process of law in violation of the Fifth Amendment. Not content with that exercise in historical racism, Taney also slammed the federal courthouse door to any future efforts by black people to find some rights, holding that as a matter of original intent, no black person could be a “citizen” within the meaning of Article III’s grant of diversity jurisdiction. It took a bloody Civil War and the Thirteenth and Fourteenth Amendments to reverse Taney’s toxic exercise in racist originalism.
Many originalists acknowledge the moral disaster of Dred Scott and recognize the danger of looking backward to read the constitutional text, but they claim we have no choice if we’re to reconcile judicial review and democracy. The democratic legitimacy of the power of an unelected judge to invalidate a congressional or presidential act, they claim, depends under Marbury upon the existence of a clear constitutional command. In short, a train wreck. In the absence of such a train wreck, originalists argue that it is democratically illegitimate for an unelected judge to consult her own values in deciding whether an act of Congress or the president violates an ambiguous provision of the Constitution. They claim that originalism can deliver the train wreck.
It turns out, though, that an honest exercise in originalism almost never delivers on its promise to turn the Constitution into a document that can be read only one way. In the first place, originalists don’t agree among themselves about whose original intent counts. Madison’s? The delegates to the Philadelphia Constitutional Convention? The members of the various state ratifying conventions? The voters who elected the members of the state ratifying conventions? The 1789 Congress that adopted the Bill of Rights? The voters who elected the members of that Congress? An ill-defined fictive group that some originalists call the late-eighteenth-century “general public”? (Whatever that means! Does it include women? The poor? Native Americans? Free blacks?) Over the years, various schools of originalists have dallied with each category without settling on one. If you can’t even agree on whose original intent you’re looking for, how can you find a single “original” meaning?
Even more troubling, whichever category of Founders you choose to interrogate, careful historical research almost always reveals that they were as confused and divided over the meaning of the ambiguous provisions as we are today. You can’t get a more privileged set of Founding insiders than Thomas Jefferson and Alexander Hamilton. Yet they spent most of their time in President Washington’s first cabinet arguing over whether the Commerce Clause authorized the creation of the first bank of the United States. If Jefferson and Hamilton couldn’t agree on the single correct original meaning of the Commerce Clause, even though they had just helped draft and ratify it,40 how can we expect a definitive originalist interpretation today?
In fairness, no one else makes a more persuasive case for their recipe for discovering the single correct meaning of the constitutional text. Justice William J. Brennan Jr., the great liberal icon, called his interpretive approach the search for a “living constitution.” Brennan, like Scalia, claimed to be able to talk to the Founders. Unlike Scalia, though, Brennan didn’t pretend that he was talking to a real Founder. Instead, he summoned a “reasonable Founder,” sat him (it was always him) down, and asked him what the living text should mean today. It’s simply amazing how often the fictive Founder agreed with Justice Brennan.
While Justice Brennan’s approach frees us from eighteenth-century prejudices and, in my opinion, delivered magnificent constitutional law, it hardly qualifies as a serious method of finding a single right answer to the meaning of the constitutional text. A ghostly Founder may have assured Justice Brennan that he wanted the Constitution to enshrine the “one person, one vote” principle in Baker v. Carr, the First Amendment “marketplace of ideas” in New York Times v. Sullivan, or money as pure speech in Buckley v. Valeo, but the rest of us were not in on the conversation.
A fourth approach to reading the Constitution is often called purposivism; it was championed by Justice David Souter during his nineteen underappreciated years on the Court and by his intellectual mentor Justice John Marshall Harlan. Purposivists don’t pretend to talk to the Founders. Using the text, history, and structure of the Constitution as guides, they seek to ascertain the underlying “purpose” of a constitutional phrase and to construe doubtful phrases in a way that advances their purposes in the modern world. It’s Brennan without the séances. Most American judges use it today as their preferred way of deciphering the text. But while purposivism is capable of producing excellent constitutional law, it fails to produce single right answers about the document’s true meaning. The twin judicial tasks of ascertaining the dominant purpose of an ambiguous constitutional text and then deciding how best to advance that purpose in the modern era require repeated subjective, value-laden judgment calls that will almost certainly be contested by justices with a different value hierarchy. Remember how hard it is to ascribe a dominant purpose to the First Amendment.
Justice Steven Breyer’s spin on purposivism takes it to a higher level of generality. He argues that the dominant purpose of the entire Constitution is to enhance participation in democratic self-governance.41 Having identified such an overarching purpose, he professes to decide hard constitutional cases in ways that advance that laudable ideal. While it often leads to excellent outcomes, a general concern with advancing democracy that is not carefully rooted in the text hardly qualifies as a blueprint for a single right answer in a hard constitutional case. Why not, for example, treat protection of individual autonomy or economic efficiency as the overarching purpose of the Constitution? My effort to read all forty-five words of the First Amendment as a narrative of democracy is an effort to ground Justice Breyer’s emerging intuition in the text itself.
A few intrepid souls acknowledge that the constitutional text is too ambiguous to generate single right answers in hard constitutional cases and that literalism, originalism, and purposivism all fail to deliver on their promise to produce a single objectively correct reading. They argue that the Founders’ use of ambiguous phrases at a high level of generality acts as a delegation to future generations of the power and responsibility to interpret the Constitution in accordance with the felt necessities of the times. It’s the way Justice Brennan actually decided hard cases. It’s what the unanimous Supreme Court did in Brown when it rejected ninety years of contrary precedent to invalidate racial segregation in public schools.42 But such a process, deeply dependent on a judge’s value-laden personal assessment of what the times require, cannot possibly be thought of as generating a single objectively right answer. Ronald Dworkin tried to think himself out of that dilemma by analogizing constitutional interpretation to an extremely complex problem in mathematics for which all agree that a single solution exists but for which it is impossible under current conditions of knowledge to calculate the one right answer. All that mathematicians can do in such settings, Dworkin argued, is to work toward the solution using the best tools of the mathematical trade. Judges, Dworkin argued, also work toward a single but unknowable correct constitutional answer by consulting the best aspects of their culture to reach the fairest and most just results.
Whatever the attractions of Dworkin’s approach to constitutional interpretation—and they are many—his approach also fails to deliver a single objectively right answer. Asserting that an unknowable constitutional meaning exists that judges can reason toward by using their understanding of the best elements of the culture simply asks judges to do what they think is best. Maybe that’s the inevitable nature of constitutional judging, but it surely is not a formula for a single objectively correct reading of the consti
tutional text. Others, lacking Dworkin’s intellectual firepower, just keep their heads down and say as little as possible about why aggressive judicial review is consistent with democratic theory. Much of the time, they camouflage their acts of creative interpretation in purposivist or originalist terms in order to shield their use of subjective values from the light of day.
So the second dirty little secret of judicial review is that, with the exception of literalism in a few trivial settings, none of the current approaches to reading the constitutional text delivers a single value-neutral indisputably correct constitutional meaning. Literalism fails. Originalism fails. Purposivism fails. Like it or not, judges must make value choices in deciding a hard constitutional case. That’s where recovering the ability to listen to Madison’s music could be of real help to an intellectually honest judge. Once we realize that values inevitably play a role in constitutional interpretation, Madison’s music can provide significant assistance to a judge seeking coherent meaning in the ambiguous text of the Bill of Rights. Whatever your theory of constitutional interpretation, intellectually honest judges will almost certainly find useful guidance if they are able to read the Bill of Rights as an ordered, coherent narrative of liberty and democracy in which each idea is linked to another and all are linked to the overarching principle of fostering the First Amendment’s democratic city on the hill.
THE THIRD DIRTY LITTLE SECRET OF JUDICIAL REVIEW (THE BIG SCARY ONE)
Marbury’s apologia for judicial review is persuasive only in train-wreck cases where the collision between the constitution’s clear text and a statute is unavoidable, and so far we haven’t come up with a generally accepted way to read ambiguous provisions of the Constitution in non-train-wreck cases. That recognition leads us to the third secret of judicial review—the big scary one. The historical facts are indisputable: constitutional judging has too often reached appalling, politically driven results that have reinforced the strong at the expense of the weak. It turns out that vesting unelected judges with the enormous, essentially unconstrained power of judicial review is a huge gamble.
Gambling on Judges
During the nineteenth and most of the twentieth centuries, the United States was virtually the only democracy to place the power of judicial review in the hands of unelected judges. Sister democracies, such as Great Britain and France, were deeply suspicious of giving so much power to unelected judges because, frankly, judges, drawn from an elite segment of the population, don’t always function terribly well when asked to protect the weak against the strong. The Warren Court may well have been an aberrational blip on the judicial radar. We’ve already looked at the partisan political fiasco of Marbury v. Madison, the Court’s first judicial review of an act of Congress. The second was infinitely worse. Dred Scott v. Sandford invalidated Congress’s effort to ban slavery from the territories and ruled that free blacks could never be recognized as citizens of a state. It’s hard to read Dred Scott and retain faith in judges. Sadly, Dred Scott isn’t alone. The first Supreme Court case to strike down a state statute as unconstitutional, Prigg v. Pennsylvania, was no better. The Prigg Court invalidated an effort by the Pennsylvania legislature to protect free blacks from being kidnapped from the streets of Philadelphia by bounty hunters allegedly searching for escaped slaves.43 The Supreme Court struck down the Pennsylvania anti-kidnapping law, construing the Fugitive Slave Clause of the Constitution as guarantying slave owners the right to take the law into their own hands to recover their allegedly escaped property. Ugly as the Fugitive Slave Clause was, though, it says no such thing.44 The majority justices in Prigg just made it up.
In the years following the Civil War, we turned to the federal courts and judicial review in an effort to protect the rights of newly freed slaves. Congress vested lower federal courts with broad federal-question power to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments, hoping that judges actually would protect blacks. Instead, the Supreme Court upheld legally enforced racial segregation,45 turned away desperate pleas to protect minority voting rights,46 and allowed lynch law to flourish by striking down every nineteenth-century effort to enact federal legislation banning it.47 Instead of protecting the weak, the Supreme Court invoked the federal judiciary’s newly granted enforcement power to protect corporations48 by severely restricting railroad rate regulation,49 blocking unions,50 and invalidating minimum-wage, maximum-hour, and child-labor laws.51 Over the objections of Justice Oliver Wendell Holmes Jr., who accused his Supreme Court colleagues of imposing economic Darwinism in the guise of constitutional interpretation, during the first third of the twentieth century a phalanx of deeply conservative federal judges invoked the Constitution to invalidate virtually every significant effort at regulating the economic and labor markets.
FDR’s Wager
During the Great Depression of the 1930s, the Supreme Court’s invalidation of critical aspects of the first New Deal52 led to an effort by President Roosevelt in 1937 to pack the Supreme Court with justices more amenable to his views by appointing six new justices, one for every sitting justice over seventy, bringing the Court to fifteen members. Roosevelt’s efforts at court packing had a surface constitutional plausibility. After all, in 1801, Adams had “unpacked” the Court by lowering its membership from six to five justices. In 1802, Jefferson had prevented the Court from sitting at all. In fact, the Constitution says nothing about the size of the Supreme Court. It began life in 1789 with six justices. In 1801, John Adams briefly shrank it to five to prevent president-elect Jefferson from having a vacancy to fill. The 1802 Congress restored the number to six. As the country grew, Supreme Court membership was increased to seven in 1807, nine in 1837, and ten in 1863. It shrank to nine in 1866 and eight in 1867. In 1869, membership was returned to nine, where it has remained ever since.
FDR was rebuffed by Congress, but at least one sitting justice—Owen Roberts—got the message and switched his position on several important constitutional issues, voting to uphold crucial aspects of Roosevelt’s program, especially the National Labor Relations Act.53 Roberts’s conversion has been known ever since as “the switch in time that saved nine.” The crisis passed with the death or retirement of four justices, giving FDR the ability to build a comfortable Democratic majority on the Court, but the message that judicial review is a subjective and intensely political process was reinforced again.
Post–New Deal exercises of judicial review by the Supreme Court continued to generate fierce political controversy, this time about social rather than economic issues. During World War II, the historic flag salute decision in West Virginia v. Barnette reversed a 1940 decision and ruled that schoolchildren could not be forced to salute the flag. A year later, though, the Court sustained the constitutionality of the Japanese internment camps in the infamous Korematsu decision.54 The postwar Court’s attention then shifted to the linked problems of racial discrimination and the regional failure of Southern political and judicial institutions to confront Jim Crow. Brown v. Board of Education invalidated racial segregation in public schools and ushered in the era of the Warren Court, named for Chief Justice Earl Warren, a Republican governor of California who had been elected three times with broad bipartisan support but had supported the Japanese internment camps. Warren was appointed chief justice in 1953 by President Eisenhower and presided over a controversial egalitarian surge that reinterpreted much of the Constitution and laid bare the politics of judicial review.
The Warren years ended in 1969, when President Lyndon B. Johnson and Justice Abe Fortas botched the process of appointing Warren’s successor. Fortas, tapped by his crony LBJ as the new chief justice, was eventually forced to resign from the Court over financial conflicts of interest, leaving the power to fill that vacancy and the power to appoint Warren’s successor to Richard Nixon. Like Roosevelt (and Harding) before him, Nixon parlayed four Supreme Court appointments into operational control of the Court, although Nixon’s justices, confronted with a bewildering array of social issues, turned
out to be more unpredictable than Roosevelt’s economic phalanx.
In the ensuing years, a closely divided Supreme Court careened unpredictably from one social issue to the next, often by 5–4 votes:
•protecting a woman’s right to choose whether to bear a child55 and then taking back much of the right,56
•approving affirmative action57 and then turning on it,58
•expanding freedom of religion59 and then contracting it,60
•enforcing freedom from religion61 and then not so much,62
•powerfully reinforcing free speech63 but not at the bottom of a hierarchy,64
•revolutionizing criminal procedure65 and then undoing much of the revolution,66
•building a dysfunctional law of democracy67 and then refusing to budge from it,68
•gutting efforts at gun control while69 decrying violent crime,
•recognizing broad national power to regulate the economy70 and then chipping away at it.71
The only constant over time has been the Court’s fierce determination to preserve its own power, rooted solely in Marbury v. Madison, to impose the definitive reading of the Constitution’s ambiguous text.72
The only clear message that emerges from over two centuries of experience with judicial review is that it’s a game of chance—unpredictable and deeply dependent on the political beliefs of the justices who read the open-ended provisions of the Constitution against the backdrop of their personal values. Every presidential election is a rolling constitutional convention empowering the winner, with the advice and consent of the Senate, to populate the Supreme Court with justices who will, in hard cases, bend the arc of the Constitution to reflect the values of the president who appointed them. That’s not to say there is no difference between judges and legislators. In most cases (especially in the lower courts), a combination of clear text and binding precedent provides real guidance to a principled judge, overriding political preferences. Even in the Supreme Court, where cases are chosen primarily because lower courts disagree over the right answer, most cases can be decided as a matter of text and precedent. But in genuinely hard cases, where text and precedent run out, there is no escape from value-laden judging. Would recovering Madison’s music provide a complete antidote to the huge gamble that is judicial review? Would it eliminate value-driven disagreement over constitutional meaning? Of course not. The Constitution’s abstract and ambiguous text will always resist efforts to domesticate it fully and can never be divorced entirely from the values of the judges doing the reading. But rediscovering the music in Madison’s lost poetry would improve the odds by vesting the Bill of Rights with a coherent theme. Over time, the magnetic field of that theme should lead to a reading of the text that is closer to both its brilliantly structured organization and its timeless story of the intimate relationship between democracy and individual freedom.
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