Madison's Music (26 page)

JUDICIAL REVIEW'S FIRST DIRTY LITTLE SECRET

That brings those of you, dear readers, who have survived the trek through the legal history wilds of
Marbury
to the first dirty little secret of judicial review. When a collision between a statute and the Constitution is clear and unavoidable, Chief Justice Marshall's
opinion in
Marbury
makes a compelling logical case for a judge's duty to enforce the Constitution's text, not the statute's. But Marshall's reasoning in
Marbury
says next to nothing about settings, like
Marbury
itself, where reasonable people can differ over how to read the constitutional text. As a matter of logic, in settings where at least two plausible readings coexist, why should the judge's reading always trump Congress's equally plausible reading? In
Marbury
, it seems reasonably clear that, unlike a case where there's a clear collision between the constitutional text and a statute, Chief Justice Marshall had a choice—which he exercised poorly (or politically). He could have created a collision between the 1789 statute and Article III of the Constitution by reading the Exceptions and Regulations Clause very narrowly, or he could have avoided one by reading the Article III text more flexibly. Why shouldn't Marshall have been obliged to defer to James Madison's equally plausible reading of Article III as a member of the 1789 Congress that had adopted the statute in question?

So the first dirty little secret of judicial review is that in more than two hundred years of Supreme Court precedent glibly citing
Marbury
as the source of the Court's power to declare statutes unconstitutional the Court doesn't even try to distinguish between “train wreck” cases involving an unavoidable collision between the Constitution and a statute (where the reasoning of
Marbury
actually works) and cases where either the statute or the ambiguous constitutional text can be plausibly read to avoid the collision (where
Marbury
is no help at all). Invoking the iconic power of
Marbury
and relying on the fact that judicial protection of individual rights is one of our most admired contributions to the art of democratic governance,
³⁴
the Supreme Court simply plows ahead, proclaiming its “responsibility” (and power) to “say what the law is.”
³⁵
Sometimes, as in Chief Justice Roberts's 2012 opinion upholding the Affordable Care Act,
³⁶
the Court (or at least the chief justice) appears to maneuver to avoid a collision; sometimes, as in
Marbury
itself, the Court appears to labor to construct the collision. But in the absence of a constitutional train wreck, why should such
a judicial power exist at all? More than two centuries after
Marbury
, we are in the uncomfortable position of being deeply committed to judicial review because it works so well in protecting the individual against majoritarian tyranny, while lacking an intellectually satisfying explanation of where such muscular judicial power comes from and how it should be exercised.

THE SECOND DIRTY LITTLE SECRET OF JUDICIAL REVIEW

Worse, once we get beyond train-wreck cases, in which Congress or the president has been caught violating
un
ambiguous parts of the Constitution's text, judges have absolutely no idea how to read the
ambiguous
provisions of either the Constitution or the challenged statute. Chief Justice Marshall's reasoning in
Marbury
invites us to think of the Bill of Rights as a self-propelled legal machine, automatically protecting our liberty by instructing judges to prevent a transient political majority from violating the rights of the individual. But history, logic, and common sense teach that the Bill of Rights does not operate on autopilot. Its real-world effectiveness depends on broad public understanding of and support for the values it catalogs, and on wise judicial readings of its necessarily abstract and ambiguous terms.

In recent years, waves of mostly right-handed repair specialists, inspired by Justice Antonin Scalia,
³⁷
have tried to shore up the
Marbury
model by urging greater judicial respect for constitutional text as a source of objectively knowable commands to judges. These right-handed repair specialists promise us that fidelity to the text can provide a judge with a democratically legitimate, externally mandated way to decide constitutional cases without invoking the judge's own values.
³⁸
My effort to mine the forty-five words of the First Amendment to recapture Madison's music is a tribute to the power of Justice Scalia's reminder that text matters. But it matters in different ways. My search for harmony and purpose in the whole text is a far cry from right-wing textualism. One group
of right-wing textualists, calling themselves literalists, insist that the Constitution's single correct meaning can be found in each of its 4,543 words. All you need to decipher the Constitution's one true meaning, they claim, is a good 1789 dictionary and the courage to read the text literally.

Literalists have a minor point. When you want to know how many witnesses are needed to convict someone of treason (two), or how old the president must be (thirty-five), or the president's required citizenship status (native-born, not naturalized), or how many votes each state gets in the Electoral College (one for each of the state's two senators, plus one for each representative to the House), or how many electoral votes it takes to elect a president (currently, two hundred seventy), the Constitution's literal text delivers a single definitive answer. Even when the literal text seems ambiguous, the context often dictates that a word with more than one dictionary meaning must be read in only one plausible way. For example, when the Third Amendment states that “no soldiers shall in times of peace be
quartered
in any home,” the clause can't be read as a ban on cutting up enlisted men for the stewpot. On the other hand, doubts can arise even when the text appears to have a single literal meaning. For example, while it's clear that the government needs two witnesses for a treason conviction, must both witnesses be physically present in court? Can one or both required “witnesses” be co-conspirators whose incriminating out-of-court statements in furtherance of the conspiracy currently satisfy the rules for evidentiary admission? There is no dictionary answer to that question. Someone has to decide what the word “witness”
should
mean in the constitutional text, not in the
Oxford Unabridged Dictionary
. Thus, useful as literalism can be in reading the Constitution in many relatively trivial settings, everyone agrees that the dictionary has its limits.

Many of the Constitution's words and phrases plausibly carry multiple dictionary meanings, especially the necessarily abstract words and phrases used in the Constitution's rights-bearing provisions. As we've seen, literalism is of absolutely no help in reading
the First Amendment.
³⁹
Like the term “witnesses” in the Treason Clause, the phrase “the freedom of speech” is a legal blank canvas that must be filled in by human readers of the text. There is no dictionary road map for the job.

It only gets harder to impose a single literal meaning on phrases such as the ban on “unreasonable searches and seizures” in the Fourth Amendment, the guaranty of “due process of law” in the Fifth Amendment, and the prohibition on “cruel and unusual punishment” or “excessive fines” in the Eighth Amendment. When you add “equal protection of the laws” in the Fourteenth Amendment, the nontextual implied guaranty of equality in the Fifth Amendment's Due Process Clause, and the nontextual addition of freedom of association to the First Amendment, the idea of a literal Constitution collapses.

A related group of repair specialists, the “originalists,” led by Justice Antonin Scalia, argue that most constitutional ambiguities can be reduced to a single correct meaning, not necessarily by consulting a dictionary, but by asking what the Founders originally intended the words to mean. But figuring out the original meaning of an ambiguous constitutional phrase turns out to be much harder than Justice Scalia admits. For starters, it's unclear why we would want to adopt a method of reading the Constitution in the twenty-first century that locks us into the mind-set of an era in human history when slavery was legal, women couldn't participate in politics or most professions, only the rich could vote, and the idea of freedom of speech and political association was so weak that President John Adams locked up most newspaper editors who opposed him in the election of 1800.
Dred Scott v. Sandford
, a consensus choice for the worst decision in Supreme Court history, is a nightmare application of originalism, illustrating the moral and political price of looking backward to read our most precious legal text.

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.