Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter

The Review of Politics

Volumn 48, Issue 3, 1986, Pages 401-423

  Murphy, Walter F ^a  

^a NONE

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EID: 84971941384     PISSN: 00346705     EISSN: 17486858     Source Type: Journal    
DOI: 10.1017/S0034670500039334     Document Type: Article

References (151)

1. J. Agresto, John, The Supreme Court and Constitutional Democracy, 1984, Especially:, (Ithaca: Cornell University Press)
2. S.A. Barber, Sotirios A. On What the Constitution Means, 1984, (Baltimore: Johns Hopkins University Press)
3. P. Bobbitt, Philip, Constitutional Fate, 1982, (New York: Oxford University Press)
4. J. Brigham, John, Constitutional Language, 1978, (Westport, Conn: Greenwood Press)
5. J.H. Choper, Jesse H. Judicial Review and the National Political Process, 1980, (Chicago: University of Chicago Press)
6. L.H. Carter, Lief H. Contemporary Constitutional Lawmaking, 1985, (New York: Pergamon Press)
7. R.A. Dahl, Robert A. Dilemmas of Pluralist Democracy, 1982, (New Haven: Yale University Press)
8. R. Dworkin, Ronald, Taking Rights Seriously, 1977, (Cambridge: Harvard University Press)
9. Dworkin, A Matter of Principle, 1985, (Cambridge: Harvard University Press)
10. Dworkin, Law's Empire, 1986, (Cambridge: Harvard University Press)
11. J.H. Ely, John Hart, Democracy and Distrust, 1980, (Cambridge: Harvard University Press)
12. G.J. Jacobsohn, Gary J. The Supreme Court and the Decline of Constitutional Aspiration, 1986, (Totowa, N.J.: Rowman & Littlefield)
13. L. Lusky, Louis, By What Right?, 1975, (Charlottes-ville: Michie)
14. A.S. Miller, Arthur Selwyn, Constitutional Dictatorship, 1981, (Westport, Conn.: Greenwood Press)
15. M.J. Perry, Michael J. The Constitution, the Courts, and Human Rights, 1982, (New Haven: Yale University Press)
16. R.M. Smith, Rogers M. Liberalism and American Constitutional Law, 1985, (Cambridge: Harvard University Press)
17. L.H. Tribe, Laurence H. Constitutional Choices, 1985, (Cambridge: Harvard University Press)
18. R.H. Bork, Robert H. Tradition and Morality in Constitutional Law, 1985, Among the more important are:, (Washington, D.C.: American Enterprise Institute)
19. R.A. Goldwin, Robert A. W.A. Schambra, William A. How Democratic Is the Constitution?, 1980, and the three volumes edited by, and published by the American Enterprise Institute
20. How Capitalistic Is the Constitution?, 1982
21. How Does the Constitution Secure Rights?, 1985
22. Discovering the Constitution, B.A. Ackerman, Bruce A. Yale Law Journal, 1984, 93, 1013, See esp.
23. Everyman's Constitutional Law, J.B. Attanasio, John B. Georgetown Law Journal, 1984, 72, 1665
24. The Forum of Principle, R. Dworkin, Ronald, New York University Law Review, 1981, 56, 469
25. The Court and the Economic System, F.H. Easterbrook, Frank H. Harvard Law Review, 1984, 98, 4
26. Economic Reasoning and Constitutional Interpretation, L.H. Tribe, Laurence H. Harvard Law Review, 1985, 98, 592, The reply by
27. Method, Result, and Authority, L.H. Tribe, Laurence H. Harvard Law Review, 1985, 98, 622, Easterbrook's rejoinder
28. Objectivity and Interpretation, O.M. Fiss, Owen M. Stanford Law Review, 1982, 34, 739
29. Interpretation and Interest, P. Brest, Paul, Stanford Law Review, 1982, 34, 765, and the response by
30. Bonding Word and Polity, W.F. Harris, William F. II, American Political Science Review, 1982, 76, 34
31. The Constitution in American Civil Religion, S.V. Levinson, Sanford V. Supreme Court Review, 1979, 123
32. Constitutional Adjudication: The Who and When, H.P. Monaghan, Henry P. Yale Law Journal, 1973, 82, 1363
33. A Natural Law Theory of Interpretation, M.S. Moore, Michael S. Southern California Law Review, 1985, 58, 277
34. The Art of Constitutional Interpretation, W.F. Murphy, Walter F. Essays on the Constitution of the United States, 1978, M. Judd Harmon, ed., (Port Washington, N.Y.: Kennikat Press)
35. Constitutional Interpretation: The Art of the Historian, Magician, or Statesman?, Murphy, Yale Law Journal, 1978, 87, 1752
36. An Ordering of Constitutional Values, Murphy, Southern California Law Review, 1980, 53, 703
37. The Authority of Text, Tradition, and Reason: A Theory of Constitutional ‘Interpretation,', M.J. Perry, Michael J. Southern California Law Review, 1985, 58, 551
38. The Notion of a Living Constitution, W.H. Rehnquist, William H. Texas Law Review, 1976, 54, 693
39. Interpretation and Historiography, D.A.J. Richards, David A. J. Southern California Law Review, 1985, 58, 489
40. Philosophy and Democracy, M. Walzer, Michael, Dem. Theory, 1981, 9, 379
41. The Politics of Interpretation, Critical Inquiry, 1982, 9, For example:, (September)
42. Judicial Review versus Democracy, Ohio State Law Journal, 1981, 42-1
43. Interpretation, Southern California Law Review, 1985, 58, nos. 1 & 2 (January)
44. Law and Literature, Texas Law Review, 1982, 60-3, (March)
45. Judicial Review and the Constitution, University of Dayton Law Review, 1983, 8-3, (Summer)
46. Legal Scholarship, Yale Law Journal, 1981, 90-5
47. An Analysis of the Issues of Democracy and Nationalism at the Federal Convention of 1787, W.B. Cody, William B., 1980, In particular:, (New School)
48. The Political Theory of the Federalist Papers, D.F. Epstein, David F., 1979, (Harvard)
49. Can the Constitution Govern?, J.E. Finn, John E., 1986, (Princeton)
50. The Interpretable Constitution, W.F. Harris, William F. II, 1985, (Princeton)
51. Judicial Review: The Perspectives of Warren, Stewart, and Rehnquist, B.T. McMorrow, Brian T., 1984, (Santa Barbara)
52. Separation of Powers, Mixed Government, and the Constitution, R.C. Moulton, Roger C., 1981, (Chicago)
53. The Political Science of the Federalist, P. Peterson, Paul, 1980, (Claremont)
54. Liberalism, Democracy, and the Supreme Court, M. Silverstein, Mark, 1982, (Cornell)
55. Liberalism and American Constitutional Law, R.M. Smith, Rogers M., 1980, (Harvard)
56. Judgment and the Concept of Judicial Space, S.C. Stimson, Shannon C., 1985, (Harvard)
57. W.F. Murphy, Walter F. J.E. Fleming, James E. W.F. Harris, William F. American Constitutional Interpretation, 1986, (Mineola, N.Y.: Foundation Press)
58. Agresto, The Supreme Court and Constitutional Democracy
59. Barber, On What the Constitution Means
60. The Constitution in American Civil Religion, Levinson
61. Constitutional Adjudication: The Who and When, Monaghan
62. F. Murphy, Fleming, American Constitutional Interpretation, For a more detailed discussion, see, chap. 2
63. Defending Liberalism, W. Galston, William, American Political Science Review, 1982, 76, 621
64. Liberal Virtues, S.J. Macedo, Stephen J., 1986, (Ph. D. dissertation, Princeton)
65. Barber, What the Constitution Means, esp. chaps. 5–6
66. Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration. Jacobson v. Massachusetts, 1905, 197 U.S. 11, denying the Preamble as a source of judicially enforceable rights, does not address the basic issue here
67. R.M. Dawson, R. MacGregor, The Government of Canada, 1963, It might be useful were interpreters to adopt the Canadian distinction between the constitutional document and the constitution. See, 4th ed., rev. Norman Ward (Toronto: University of Toronto Press, chap. 11
68. The Battle for the Constitution, Policy Review, 1986, 35, 32-35, (Winter)
69. The Attorney General's View of the Supreme Court: Toward a Jurisprudence of Original Intention, Public Administration Review, 1985, 45, 701
70. McCulloch v. Maryland, 1819, 316, 415, 4 Wh.
71. Legal Tender Cases, 1871, 649, 12 Wall. 457, dis. op.
72. F. Murphy, Fleming, American Constitutional Interpretation, Most of the recent literature on constitutional interpretation deals — though usually in an unselfconscious fashion —with the question of HOW. For a general analysis of the range of possibilities here, see, chap. 8
73. Interpretation, Southern California Law Review, 1985, 58, See also Symposium on, nos. 1 & 2 (January)
74. Bobbitt, Constitutional Fate, chaps. 1–7
75. C.R. Ducat, Craig R. Modes of Constitutional Interpretation, 1978, (St. Paul: West)
76. The Art of Constitutional Interpretation, Murphy, Essays, Harmon
77. W.W. Crosskey, William W. Politics and the Constitution, 1953, 3 vols. (Chicago: University of Chicago Press, –1980). (Vol. 3 was coauthored by William J. Jeffrey, Jr.)
78. C.L. Black, Charles L. Structure and Relationship in Constitutional Law, 1969, (Baton Rouge: Louisiana State University Press)
79. Bonding Word and Polity, Harris
80. The Wages of Crying Wolf: A Comment on Roe v. Wade, Yale Law Journal, 1973, 82, 920, Ely, Democracy and Distrust; and
81. Roe v. Wade, 1973, See, however, his joining Laurence H. Tribe to attack bills to modify, 410 U.S. 113, —a ruling that he had, as his constitutional theory required, sharply criticized in “The Wages of Crying Wolf”
82. Let There Be Life, New York Times, 1981, A17, 17 March
83. The Human Life Bill: Hearings on S. 158, 1982, 2, 860, reprinted in U.S. Senate, Committee on the Judiciary, Subcommittee on Separation of Powers, 97th Cong., 1st Sess.
84. R.P. Basler, Roy P. The Collected Works of Abraham Lincoln, 1953, 4, 262-271, The entire speech is reprinted in, (New Brunswick: Rutgers University Press)
85. W. Johnson, William, 1823, To Justice, 12 June
86. A.A. Lipscomb, Andrew A. Writings of Thomas Jefferson, 1903, 15, 451, (Washington, D.C.: Thomas Jefferson Memorial Association)
87. Federalist, 49, For Madison's critique of an earlier version of Jefferson's idea of “recur-rence to the people,” see
88. West Coast Hotel v. Parrish, 1937, The Court announced its decision in, 300 U.S. 379, on 29 March 1937; but the justices decided the case —and Roberts switched his vote —in December 1936
89. O.J. Roberts, Owen J. The Court and the Constitution, 1951, 61, (Cambridge: Harvard University Press)
90. F. Murphy, Fleming, American Constitutional Interpretation, There are two other obvious competitors, presidential supremacy and what might be termed nullification or “confederational departmentalism.” No president has seriously pushed presidential supremacy, though one might argue that such a theory underlay much of Lincoln's actions during the Civil War. Nullification held the states to be the final interpreters. Jefferson advocated this theory in the Kentucky Resolutions; John C. Calhoun amplified it; and the Southern states applied it in their acts of secession. Because the Civil War effectively invalidated such claims, I shall not discuss them here, nor for reasons of space other problems of federalism. For a fuller explanation and a reprinting of some of the basic documents, see, chap.7
91. Commentaries on the Constitution of the United States, Bk, 1933, 1, (Boston: Hilliard, Gray), III, §383
92. Commentaries on the Constitution of the United States, Bk, 1933, 1, §385
93. McCulloch v. Maryland, 1819, 400-401, “The constitution of our country,” Marshall wrote, “in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked by that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful sense responsibility involved in its decision. But it must be decided peacefully … and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty.”, 4 Wh. 316
94. Madison's, Annals of Congress, 1789, 1, 520
95. How Well Does Congress Support and Defend the Constitution?, A.J. Mikva, Abner J. North Carolina Law Review, 1983, 61, 587, See the sharp criticism of congressional interpretation by Circuit Judge (and former Congressman)
96. Constitutional Interpretation by Members of Congress, L. Fisher, Louis, North Carolina Law Review, 1985, 63, 707, and the defense of congressional interpretation by
97. D.G. Morgan, Donald G. Congress and the Constitution, 1966, See, more generally, (Cambridge: Harvard University Press)
98. C.B. Swisher, Carl Brent, American Constitutional Development, 1943, 773, (Boston: Houghton Mifflin)
99. W.F. Murphy, Walter F. Congress and the Court, 1962, (Chicago: University of Chicago Press), chaps. 9–10
100. Snepp v. United States, 1980, 66n, See, for example, 444 U.S. 507, in which six justices joined in what C. Herman Pritchett has termed an “astonishingly vindictive per curiam opinion” (Constitutional Civil Liberties [Englewood Cliffs, N.J.: Prentice-Hall, 1984]), holding that a former CIA agent who published a book without clearing it, as his contract required, with the Agency, must surrender future as well as past proceeds from the book and upheld an injunction requiring prior submission to the CIA of future writings —all in the face of the fact that the government did not claim that Snepp's writing contained classified information of any sort. The Court, moreover, arrived at its decision without hearing oral argument or even receiving briefs on the merits. Nor did the majority discuss the enormous problems raised by the CIA's contract of silence even where nonclassified information is concerned. The dissenters included only one scant paragraph about these difficulties in their ten-page opinion
101. Annals of Congress, 178-179, 7th Cong., 1st sess.
102. Annals of Congress, 180-181
103. F. Murphy, Fleming, American Constitutional Interpretation, 202-211, Much of this debate is reprinted in
104. Marbury v, Madison and the Doctrine of Judicial Review, Michigan Law Review, 1914, 12, 538, Edward S. Corwin asserted that “once we accept the doctrine of judicial review as part of the Constitution, the acquiescence of the political departments in the judicial view of the Constitution is required by the Constitution itself” (551). I think Corwin was wrong. The constitutional document is silent on the matter. And there is no logical incompatibility between accepting, as Jefferson and Madison did, the authority of judges to refuse to enforce laws they believe unconstitutional and denying, as Jefferson habitually and Madison sometimes did, that the Supreme Court's decision on a constitutional issue forecloses independent congressional or presidential judgment
105. F. Murphy, Fleming, American Constitutional Interpretation, For a collection of their comments, see, chap. 6
106. Agresto, The Supreme Court and Constitutional Democracy, 78-95
107. H.V. Jaffa, Harry V. Crisis of the House Divided, 1982, For Lincoln, see, (Chicago: University of Chicago Press)
108. F. Murphy, Fleming, American Constitutional Interpretation, 198-201, See text infra at note 58. The documents are reprinted in
109. J.D. Richardson, James D. A Compilation of the Messages and Papers of the Presidents, 1908, 2, 581-582, Veto Message of 10 July 1832;, (Washington, D.C.: Bureau of National Literature and Art)
110. Stare Decisis, Record of the Association of the Bar of the City of New York, 1949, 4, 152, Cf. Justice William O. Douglas's views about stare decisis: “A judge … remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.” (154)
111. Powell v. Hart, 1970, 396 U.S. 1055
112. Judicial Misjudgments about the Lawmaking Process: The Legislative Veto Case, L. Fisher, Louis, Public Administration Review, 1985, 45, 705, See, for example
113. Legislative Vetoes, Phoenix Style, Extensions, 1984, (Spring)
114. One Year After INS v. Chadha: Congressional and Judicial Developments, 1984, Congressional Research Service, Library of Congress
115. Legislative Vetoes Enacted after Chadha, 1985, Congressional Research Service, Library of Congress
116. Slouching Toward Constitutional Duty: The Legislative Veto and the Delegation of Authority, S. Brubaker, Stanley, Constitutional Commentary, 1984, 1, 81
117. C. Warren, Charles, The Supreme Court in United States History, 1926, 1, 228-229, Quoted in, rev. ed. (Boston: Little, Brown)
118. A.J. Beveridge, Albert J. The Life of John Marshall, 1919, 3, 177, Quoted in, (Boston: Houghton Mifflin)
119. Eakin v. Raub, 1825, 12 Sergeant & Rawle 330 (dis. op.)
120. Annals of Congress, 1789, 1, 520
121. Lipscomb, Writings of Thomas Jefferson, 11, 50-51
122. P.L. Ford, Paul L. The Works of Thomas Jefferson, 1905, 12, 161-164, September 1820;, (New York: Putnam's)
123. Lipscomb, Writings of Thomas Jefferson, 14, 303-306, see also Jefferson's letter to Torrance, 11 June 1815
124. A.T. Mason, Alpheus Thomas, W.M. Beaney, William M. D.G. Stephenson, Donald Grier, Jr., American Constitutional Law, 1983, 34, 7th ed. (Englewood Cliffs, N.J.: Prentice-Hall)
125. Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, R.A. Dahl, Robert A. Journal of Public Law, 1957, 6, 279
126. The Schooner Peggy, 1801, 1, 103, He instructed the attorney general to follow the Court's decision in, a case initiated by the federal government, even though the president thought the Court had been palpably wrong. Jefferson was consistent, however, in his departmentalism. He explained that compliance here still left the executive free to use its own judgment when similar issues arose. 1 Opinions of the Attorney General 120 (1802)
127. R.H. Jackson, Robert H. Korematsu v. United States, 1944, I think, was suggesting such a distinction in his dis. op. in, 323 U.S. 214
128. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court, Marbury, Luther v. Bor-den, 1849, 1, hinted at the doctrine:, 7 How., is the classic, if murky, case. The Court has since made several heroic, if ultimately unsuccessful efforts to distinguish “political” from “justiciable” questions
129. Baker v. Carr, 369 U.S. 186, 1962, Perhaps the most useful was Justice Brennan's
130. Judicial Review and the Political Question, F.W. Scharf, Fritz W. Yale Law Journal, 1966, 75, 517
131. Is There a ‘Political Question' Doctrine?, L. Henkin, Louis, Yale Law Journal, 1976, 85, 597
132. Gilligan v. Morgan, 1973, 10, 413 U.S. 1
133. 1969, U.S. 45
134. McCulloch, 1819, 316, 421, 384 U.S. 641, at 650, quoting from
135. McCulloch, 1819, 316, 667-668, dis. op.
136. Oregon v. Mitchell, 1970, 204-209, see also his similar reasoning in, 400 U.S. 112, concur. in part and dis.in part
137. The Constitution as Bill of Rights, How Does the Constitution Secure Rights?, 67-68, Walter Berns has written that the true meaning of the amendment is that Congress and not the courts should decide such issues., Goldwin and Schambra
138. Congressional Power to Interpret Due Process and Equal Protection, W.F. Cohen, William F. Stanford Law Review, 1975, 27, 603
139. Congressional Power to Expand Judicial Definitions of the Substantive Terms of the Civil War Amendments, J.H. Cho-per, Jesse H. Minnesota Law Review, 1982, 67, 299
140. Katzenbach, 1819, 316, 652
141. Brown v. Board, 1954, One might observe that “of its own force” the Fourteenth Amendment did not forbid racial segregation in public schools until the Court so ruled in, 347 U.S. 483, more than 85 years after the amendment was adopted
142. Shapiro v. Thompson, 1969, 641, Cf. Brennan's comment in, 394 U.S. 618, “Congress may not authorize the States to violate the Equal Protection Clause”
143. F. Murphy, Fleming, American Constitutional Interpretation, 247-254, S. 158, 97th Cong., 1st sess. See the material collected in
144. Congressional Power and Consitutional Rights, S. Estreicher, Samuel, Virginia Law Review, 1982, 68, 333
145. Miranda and Title II: A Morganatic Marriage, Supreme Court Review, 1969, 81, 83-84
146. The Constitution as Bill of Rights, W. Berns, Walter, How Does the Constitution Secure Rights?, Goldwin and Schambra
147. Rome v. United States, 207, 446 U.S. 156, dis. op., (citations omitted). Stewart joined in this opinion.
148. Oregon v. Mitchell, 1970, 204-209, seemed to retreat from Katzenbach, though there was no opinion of the Court
149. Rome v. United States, 1980, 207, reasserted Katzenbach's reasoning
150. F. Murphy, Fleming, American Constitutional Interpretation, 1981, 9, 7, “Misguided” because the basic conflict is not between judicial review and democratic government but between the two theories of constitutionalism and democracy that underpin the American system of government. For a discussion, see, chap. 2, as well as the articles by Murphy cited in note 3 and Murphy, “Constitutional Interpretation: Text, Values, and Processes,” Revs. in Am. Hist.
151. W.F. Murphy, Walter F. Elements of Judicial Strategy, 1964, Which is not, by any means, to deny the importance of interest groups in particular and the electoral process in general in shaping the behavior of the legislative and executive branches and thus perhaps, though less directly, of the judicial branch as well. See, (Chi-cago: University of Chicago Press), esp. chap. 2