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Yale Law School Legal Scholarship Repository Faculty Scholarship Series

Yale Law School Faculty Scholarship

1-1-1990

Theories of Constitutional Interpretation Robert C. Post Yale Law School

Follow this and additional works at: http://digitalcommons.law.yale.edu/fss_papers Part of the Constitutional Law Commons Recommended Citation Post, Robert C., "Theories of Constitutional Interpretation" (1990). Faculty Scholarship Series. Paper 209. http://digitalcommons.law.yale.edu/fss_papers/209

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ROBERT

POST

Theories of Constitutional Interpretation Moderndemocracy invitesus toreplacethenotionofa regime foundeduponlaws,ofa legitimate power,bythenotionofa regime foundeduponthe legitimacyof a debate as to whatis legitimateand whatis illegitimate-a debatewhichis necessarily anyguarantorand without anyend. without -Claude Lefort' IN 1979 ERNEST CHAMBERS was a barber who had for nine years rep-

resented a predominantlyblack districtof Omaha in the Nebraska Unicameral in the fundaLegislature. He had been broughtup in "a religiousstrait-jacket" mentalistChurch of God and Christ,but as he had grownolder he had come to renounce Christianityand all beliefin God. Consequentlyhe was uncomfortable when the chaplain hired by the legislatureopened each session withprayer.In facthe feltcompelled to leave the legislativechamber,so thathe and the chaplain were "almostin a race to see whether"thechaplain could "getto the frontbefore" Chambers could "get out the back door."2 The chaplain of the Nebraska Legislature during that time was Robert E. Palmer, a Presbyterianclergymanwho had ministeredto the legislatorssince 1965. His prayerswere short,almost perfunctory. He stroveto make them nonsectarian,to reflect'just civilreligionin America,"whichhe understoodto consist of "the Judeo-Christiantradition,"the "kind of religious expressions that are common to the vast,overwhelmingmajorityof most all Americans."He viewed the purpose of his prayersto be the provisionof "an opportunityforSenators to be drawn closer to theirunderstandingof God as theyunderstandGod, in order thatthe divinewisdommightbe theirsas theyconducttheirbusinessforthe day." And so he would, for example, pray "in the name of Jesus-our Friend, our Saviour,our Example, our Guide," and he would "ask" thatthe Senators come to realize that"theyare part of the team workingtogetherto win the game forthe benefitof the people of thisstate."3 Chambers attemptedto convince his colleagues to end the practiceof legislativeprayer.When theyrefused,he took the characteristically American step of filingsuit in federal court. His claim was elegantlysimple: the paymentof a state salary to the ministerof a single Christiandenominationfor fourteenyears for the purpose of offeringofficialprayersto the statelegislaturewas a violationof the EstablishmentClause of the FirstAmendment to the United States Constitution.That clause provides: "Congress shall make no law respectingan establishmentof religion."4 REPRESENTATIONS

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The trialcourt held thatwhile the paymentof the chaplain's salaryviolated the EstablishmentClause, the observance of legislativeprayer did not.5 The appellate court wenteven furtherand declared thatthe whole "prayerpractice" was unconstitutional. The case was then accepted for decision by the United States Supreme Court, bywhichtimethe concreteconcernsof ErnestChambers and Robert Palmer had dwindled to littleor no moment.Chambers'slawsuithad become merely a medium through which the Court could ponder the legal meaning for the entire nation of the EstablishmentClause. The methods by which the Court ascertainsthis constitutionalmeaning are of the utmostlegal and politicalimportance.Ernest Chambers'slawsuitwould prove to be the occasion foran unusuallyclear and dramaticdisplayof these methods.

I Sometimes,although rarely,the words of the Constitutionappear to speak for themselves.In such circumstancesthe Constitutiondoes not seem to require interpretation.Article I, Section 3, Clause 1 of the Constitution,for example, states that "the Senate of the United States shall be composed of two Senators fromeach State." If a thirdCaliforniaSenator should one day present herselfforaccreditationin Washington,D.C., no courtin thecountrywould think twicebefore disapprovingof the application.From a phenomenologicalpoint of view,there would be no question of "interpreting"the constitutionallanguage, forits meaning and applicationwould appear clear and obvious.7 The most famous expression of the experience of this clarityis byJustice Owen Roberts,who in 1936 wrote that the "judicial branch of the government has onlyone duty,-to lay the articleof the Constitutionwhichis involvedbeside the statutewhichis challenged and to decide whetherthe lattersquares withthe former."8In legal circles,this approach is sometimescharacterizedas a "plain meaning" or "textualist"theory of interpretation.Yet, strictlyspeaking, the approach is not a theoryat all; it is instead a descriptionof what happens when constitutionalmeaning is not problematic. But if for any reason thatmeaning has become questionable,it is no help at all to instructa judge to followthe "plain meaning" of the constitutionaltext.A meaning thathas ceased to be plain cannot be made so by sheer forceof will.9In Chambers'slawsuit,forexample, eitherthe meaningof the EstablishmentClause withrespect to the issue of legislativeprayeris "plain,"or it is not. If the latter, the question of constitutionalmeaning cannot be resolved by staringharder at the ten words of the clause. What is required instead is a means of interpreting the textso as to mediate betweenthe clause and itsapplication.'0 Because judges mustbe able tojustifytheirdecisions,theymustalso be able tojustifythe means of interpretationthattheyemployto reach those decisions, 14

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particularlyif their choice affectsthe ultimateresult or significanceof a case. Judges mustbe able to explain whytheyhave decided to interpretthe Constitution throughone set of inquiries ratherthan another. In legal (although not in philosophical or literary)parlance,judges require and mustbe able to articulate a "theory"of constitutionalinterpretation. however,mustaccommodate itselfto the Any such theoryof interpretation, role of judicial reviewwithinAmerican democracy.When a court sets aside a statuteas unconstitutional,it in essence deems the statuteinvalidin the name of the Constitution.Courts have claimed the powerto do thisbecause, in the famous words of John Marshall in Marburyv. Madison,the decision that establishedthe institutionofjudicial review,"itis emphaticallythe provinceand dutyof thejudicial departmentto saywhatthe law is.""l The implicitpremiseof thisclaim is that the Constitutionis a formof "law,"just like the law whichcourtsordinarilyinterpret and apply. Fidelityto law is a preeminentvalue in a nation that,as Marshall prides itselfin being "a governmentof laws,and not of men."'2 put it in Marbury, of Marshall's argument in Marburyalso required him to the force But, as acknowledge, the Constitutionis somethingmore than ordinarylaw; it is "the fundamental and paramount law of the nation." The Constitutionis "fundamental"because itis thevehiclethroughwhich"thepeople . .. establish,fortheir futuregovernment,such principlesas, in theiropinion, shall most conduce to theirown happiness."The Constitutionis therefore"thebasis on whichthewhole American fabric has been erected."'3 The question arises, therefore,why it should be the provinceand dutyof the federaljudiciaryto discernin that"American fabric"the "principles"and "opinion"of "the people," when thatjudiciary is not elected by and hence structurallyresponsibleto the people. Why shouldn't that task be allocated instead to the democraticallyelected branches of government,whichare presumptivelyin closer contactwiththe popular mind? diffiThis question, which is sometimestermed the "counter-majoritarian" culty,'4has proved durable enough to sustain the work of generationsof constitutionalscholars. The question makes a powerfulpoliticalpoint.Judicial denullifythe actions of democraticallyelected terminationsof unconstitutionality branchesof government.Such determinationsare forall practicalpurposes final; often the only formal recourse is the cumbersome and impracticalprocess of constitutionalamendment. "Who are these nine Justices,"one may well have to instruct asked the Court in 1857 aftertheDred Scottdecision,'5"so definitively the nation about the 'Americanfabric'?"

II The United States Supreme Court voted 6 to 3 against Ernest Chambers. If one were simplyto view the Constitutionas ordinarylaw, thisoutcome Interpretation TheoriesofConstitutional

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would have been somethingof a surprise.The relevantprecedentsof the Court of the practice of legislative pointed unambiguouslyto the unconstitutionality prayer.As JusticeWilliamJ. Brennan pointed out in his dissent,it is "obvious that,if the Court were tojudge legislativeprayerthroughthe unsentimentaleye of our settleddoctrine,it would have to strikeit down as a clear violationof the EstablishmentClause."''6 In ordinaryadjudication, courtsfollowthe principleof staredecisis,which is to say that theyfollowthe doctrinalrules laid down in controllingprecedents.'7 In American law, the principleconstitutesa fundamentalaspect of "the rule of law,"'8 forit requires courtsto decide cases on the basis of public and predictable rules, applied in an even-handed manner,upon which persons can rely in the conduct of theirlives.'9In constitutionaladjudication,"adherence to precedent can contributeto the importantnotion that the law is impersonal in character, thatthe Court believes itselfto be followinga 'law whichbinds [it] as well as the litigants.'"20 The principleof staredecisishelps to ensure thatour constitutional order retainsthe kind of stabilityand continuitythatare prerequisitefor institutionallegitimacy. If the Court in Ernest Chambers's case had followed the principle of stare decisis,itwould have deemed controlling,as did the Court of Appeals below,2'the three-partdoctrinaltestlaid down in Lemonv. Kurtzman:22 Everyanalysisin thisarea mustbegin withconsiderationof the cumulativecriteriadeveloped bythe Court over manyyears.Three such testsmaybe gleaned fromour cases. First, the statutemust have a secular legislativepurpose; second, its principalor primaryeffect the statutemustnot foster mustbe one thatneitheradvances nor inhibitsreligion;finally, an excessivegovernmententanglementwithreligion."

The primarypurpose of religious prayer cannot reasonably be deemed to be secular; nor can its principal effectbe understood as anythingother than enhancing religion. As for the potentialfor "excessivegovernmententanglement withreligion,"it is apparent thatofficialsponsorshipof prayernecessarilyentangles the state in decisions about whichformsof prayerare appropriate or inappropriate. The word was passed to Reverend Palmer,for example, thatJewish senators in the Nebraska Legislature were offendedby his many referencesto Christ.23Eighty years before, when a state senator conveyed a similar message to

the legislativechaplain of the State Senate of California,a local clergymanthundered thatthe senator's"wordswere thoseof an irreverentand godless man" and that his offensewas a "crowninginfamy."24The point of the "entanglements" prong of the Lemonrule is to ensure thatthe statenot be embroiled in religious quarrels of thiskind. "In sum," as JusticeBrennan remarked,"I have no doubt that,if any group of law studentswere asked to apply the principlesof Lemonto the question of legislativeprayer,theywould nearlyunanimouslyfindthe practiceto be uncon16

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A fascinatingaspect of the Chambers decision, however,is that the stitutional."25 majorityneitherdisagreed withthisassessment,nor attemptedto altertheLemon doctrine.In factitignoredLemonaltogether,makingno effortwhatevertojustify itsdecision by referenceto past precedents. Instead the Court,in an opinion writtenbyChiefJusticeWarrenBurger and joined by fiveotherJustices,focused itsanalysison the factthatthe "opening of sessions of legislative and other deliberative bodies with prayer is deeply embedded in the historyand traditionof this country."The Court noted that most States of the Union have traditionallyopened theirlegislativesessionswith prayer,and that Congress has continuouslyemployed chaplains to offerlegislative prayer since the eighteenthcentury.Indeed, on 22 September 1789, three days before Congress approved the language of the FirstAmendment (and the Congress enacted EstablishmentClause) and sent it to the States forratification, a statuteprovidingforthe paymentof congressionalchaplains.26 Althoughthe Court conceded that"standingalone, historicalpatternscannot justifycontemporaryviolationsof constitutionalguarantees,"it concluded that the evidence in Chambers's case was different,for it definitelyestablished"not only ... whatthe draftsmenintendedthe EstablishmentClause to mean, but also ... how theythoughtthatClause applied to the practiceauthorized by the First Congress-their actionsreveal theirintent.""Clearly,"the Court concluded, "the men who wrote the FirstAmendmentReligion Clauses did not view paid legislativechaplains and opening prayersas a violationof thatAmendment."27 The premise of the majority'sopinion is thus thatthe meaning of the Constitutionis betterascertainedthroughstrongevidence of the intentof the Framers than through fidelityto past precedents and doctrine. The reason is apparentlythatthe intentof the Framersbest embodies those "principles"which the "people" desired to instantiatein their Constitution.In the eyes of the majority,therefore,it is more importantthatthe Constitutionbe interpretedin a manner whichaccuratelyexpresses these principlesthan thatit be interpreted in a manner whichremainsfaithfulto the principleof staredecisis.28 The principleof staredecisis,moreover,is inconsistentwitha quite different method of constitutionalinterpretation.WilliamBrennan, in a dissentjoined by one otherJustice,also gave only cursoryattentionto the rules of Lemon.In fact he appeared to agree withthe majoritythat"the path of formaldoctrine. . . can only imperfectlycapture the nature and importanceof the issues at stake in this case."29But rather than focusingon the intentionsof the Framers of the First Amendment,Brennan offeredinstead an "account"of "the underlyingfunction of the EstablishmentClause" and of the relationshipbetween thatfunctionand the practiceof legislativeprayer. According to Brennan, the EstablishmentClause embodies the twinprincias betweendiverse ples of "separationbetweenchurchand state"and "neutrality" religions.These twoprinciples,in turn,servefourpurposes. They guarantee"the Interpretation TheoriesofConstitutional

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individual rightto conscience"by ensuringthatpersons are not coerced to support (through taxes or otherwise)religious practiceswithwhich theydisagree; they"keep the statefrominterferingin the essentialautonomyof religiouslife"; "theypreventthe trivializationand degradationof religionbytoo close an attachment to the organs of government";and they"help assure that essentiallyrelinot become the gious issues,preciselybecause of theirimportanceand sensitivity, occasion forbattlein the politicalarena."30 Brennan convincinglydemonstratedthat Nebraska's authorizationof legislative prayer was inconsistentwith each of these four purposes. Indeed, as Brennan noted, the majoritysaid "almost nothingcontraryto" this functional analysis,relyinginstead almostentirelyon evidence of the historicalintentof the Framers.The majorityultimatelydifferedfromthedissent,therefore,neitheron the application of doctrine nor on the functionof the EstablishmentClause, but rather on the relevance of evidence of original intent for constitutional interpretation. Brennan explicitlyrejected such evidence as definitiveof constitutional meaning,arguing that"the Constitutionis not a staticdocumentwhose meaning on every detail is fixed for all time by the life experience of the Framers."He contended that the Constitutionmust be understood instead as "a document meant to last forthe ages," thebearer of an "inherentadaptability"thatcould not be cabined by any "staticand lifeless"meaning. His proposed analysis of the EstablishmentClause's "underlyingfunction"was meant to illustratehow courts could discernthe contemporary significanceof "the majesticgeneralitiesof the Bill of Rights."'3'His dissent pictured the Constitutionas a living,evolving entity, whose full meaning could be ascertained neitherby doctrinalprecedent nor by evidence of original intent.The dissent,therefore,was predicated upon yet a thirdformof constitutionalinterpretation. The outcome of ErnestChambers'slawsuitthusappears as a triangularstructure,in whichthreedistincttheoriesof interpretationcompete forcontrolof the Constitution.In one corner is a formof interpretationthatstrivesto implement the Constitutionthroughthe articulationof explicitdoctrinalrules. In a second corner is a formof interpretationthatattemptsto construethe Constitutionto reflectthe originalintentof its Framers.In yeta thirdcorner is a formof interpretationthatreads the Constitutionin a mannerdesigned to expressthe deepest contemporarypurposes of the people. Each of these three theoriesis immediatelyrecognizableand familiarto thosewho practiceconstitutionaladjudication.

III The purpose of constitutionaladjudication is to assess the constitutional validityof stateactions,like the hiringof legislativechaplains. But courts 18

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can achieve thispurpose onlyto the extenttheyhave the authorityto evaluate, in thename of theConstitution,thevalidityof otherwiseperfectlylegal stateactions. Every act of constitutionalinterpretationinvokes and depends upon this authority,and for thisreason "constitutionalinterpretationis essentiallyabout the sources of authorityin American politicallife."32What in factdistinguishesthe three theories of interpretationdisplayed in Chambers-theoriesthat I shall respectivelycall "doctrinal,""historical,"and "responsive"interpretation-is that each appeals to a differentconceptionof constitutionalauthority.

The authority of law. There is, first,the authorityof the Constitutionas law. The Constitutioncontrols state actions because the Constitutionis the highest The concept of the "constitutionas law,above all merelyquotidian stateactivity. hard law, law writtenin virtuallycapital letters(LAW), law as meaning reliable law," has been termed "by far the most importantidea of the Constitution."33 Because "courtsare the mere instrumentsof the law,"34theyare peculiarlyfitted to interpreta Constitutionwhose authoritylies in itscharacteras law. It is therefore no accident that in MarburyMarshall appealed preciselyto this image of constitutionalauthorityin establishingthe institutionofjudicial review. If the Constitutionpredominatesbecause it is law,itsinterpretationmustbe constrainedby the values of the rule of law,which means thatcourts must construeitthrougha processof reasoningthatis replicable,thatremainsfairlystable, and thatis consistentlyapplied.35In Americanadjudication the principleof stare decisishas been an essential component of the rule of law.36The principleis of particular importance on those occasions when constitutionaladjudication involvesvague textualreferents(like "equal protectionof the laws,"or "due process of law"), withregard to which there is "onlylimitedevidence of exactlyhow the Framersintended the [text]to apply."37On these occasions the principleof stare decisisholds courtsto a consistentand stableinterpretationof Constitution. itwould be difficult to understandthe Withoutsuch consistencyand stability, Constitutionas having any existence as law. Suppose, for example, that the Supreme Court were to decide one day in decision A thatthe practiceof legislative prayer was constitutional,perhaps because in its view the Framers had so intended. Imagine that a month later the Court were to decide in decision B, without any reference to A, that the practice was unconstitutional,perhaps because the Court's view of the Framers'intenthad changed. And assume that one monthlatertheCourt were to determinein decisionC, withoutanyreference to A or B, that the practice was partiallyconstitutional,perhaps because its reading of the historicalevidence had once again altered. In such circumstances state legislatorswould simplynot know what to do; theywould have no rule of hire legislative law bywhich to decide whetheror not theycould constitutionally chaplains.38

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It is of course implausible to suppose that the Court would so swiftlyand radically change its assessment of the historicalevidence. But the question is whetherthis implausibilityderives from the unequivocal state of the historical record,or ratherfromthe Court'simplicitobligationto remainfaithfulto itsown prior determinations.Since historicalevidence is often equivocal, particularly with respect to mattersof contemporaryconstitutionalmoment,it is the latter obligation, I would suggest,that plays an importantrole in enabling courts to create stable and predictablerules upon whichpersons can relyin the arrangeThis obligation receives formalacknowlment of their lives and institutions.39 decisis. of stare in the principle edgement This means that the principleof staredecisisoftenunderlies the capacityof constitutionaladjudication to generate a systemof constitutionallaw. Thus the decision creates a rule of constitutionallaw onlybecause of the implicit Chambers commitmentof the Court to act in the futurein waysthatare consistentwiththe Chambersholding. Put another way,the legal implicationsof Chambersdepend upon the implicitand necessaryexpectationthatthe Court willin the futuretreat to treatLemon.40 in a way thatit declined in Chambers Chambers Of course the principle of staredecisisis an immenselyflexibleinstrument, allowingcourtsto treatprecedentson the one hand as the source of specificand binding formalrules,4'or on the other as an amorphous mass of materialto be What everyapplicationof rendered consistentthroughthevirtueof "integrity."42 the principlerequires, however,is thata court focus its analysison the doctrine which has emerged fromrelevantpriorcases. The principleof staredecisisthereforecreates a chain of cases, in whicheach decision is an interpretationof immediatelyprior decisions. Construingthe Constitutionin a mannerthatis faithfulto itsauthorityas law thus leads to what I shall call "doctrinal"interpretation.The implicationof doctrinalinterpretationis thatthe actual textof the Constitutionis remittedto one end of a growing line of precedents. Even if the veryfirstjudicial decision to interpretthe EstablishmentClause had concentrateditsattentionon the specific words of the Clause or the intentionsof its Framers,the practice of doctrinal interpretationwould require the second decision to focuschieflyon the meaning of the firstdecision, the thirddecision chieflyon the meaning of the second, and so forth.In thisprocess the textof the Constitutionrecedes until,as one prominent commentatorhas put it,it comes to seem "ratherlike ... a remoteancestor who came over on the Mayflower."43 The vast majorityof constitutionaldecisions rely primarilyupon doctrinal interpretation.Novices are often quite struck by the relative absence of the Constitutionfromconstitutionalopinions, which seem oriented instead toward specificdoctrinal "tests,"like the Lemontests,derived from priorjudicial decisions. But this should be no surprise if the most powerfuljustificationfor the Constitution'sauthorityis thatit is law, and the most defensiblejustificationfor 20

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judicial review is that it is the peculiar province and duty of the courts to expound the law.

The authority of consent.If doctrinal interpretationrests on the equation of constitutionalauthoritywithlaw,what I shall call "historicalinterpretation"rests instead on the equation of constitutionalauthoritywith consent. The storyis simpleand familiar.The Framersof theConstitutionproposed a compactto limit the power of government;the people signifiedtheiragreementto thatcompact by their ratificationof the Constitution,and that agreement is what gives the Constitutionits authority.The interpretationof the Constitutionshould thereforebe designed to give effectto the termsof thatoriginalact of agreement. The storybehind historicalinterpretationhas enormous resonance in a liberal societylike our own. It conceivesof the Constitutionas binding in the same way thata promise is binding,as a singlevoluntaryact of willfulself-regulation. In interpretingsuch a Constitutioncourtscan portraythemselvesas merelythe passive enforcersof the democraticwillthat"ordained and established"the Constitution.Thus, as formerAttorneyGeneral Edwin Meese III could observe,"A Jurisprudenceof Original Intention... reflectsa deeply rooted commitmentto the idea of democracy.The Constitutionrepresentsthe consentof the governed to the structuresand powers of the government.The Constitutionis the fundamentalwillof the people; thatis whyit is the fundamentallaw."44 Differentvariantsof historicalinterpretationemphasize differentformsof evidence as probativeof that original exercise of "fundamentalwill."Thus for some commentatorsthe constitutional"text"is a privileged form of evidence, whereas for because "the textis the intentionof the authorsor of the framers";45 others the "relevantinquirymust focus on the publicunderstandingof the language when the Constitutionwas developed."46By farthe mostcommon formof historicalinterpretation,and the one used by ChiefJusticeBurger in Chambers, regards the intentionsof the Framersas the best evidence of the agreementrepresentedby the Constitution.47 This form of historicalinterpretationhas become quite controversialin recent years, in part because some members of the resurgentRight have attemptedto use historicalinterpretationas a means of constrictingthe discretion of supposedly liberaljudges. The notion is thatjudges will have less room to maneuver if theyare bound to the specificfactualintentionsof the Framers.But of the principlesof historicalinterprethis notion is a vulgar misinterpretation tation,as is elegantlyillustratedbyan example suggestedbyPaul Freund. Article I, Section 8, Clause 14 of the Constitutiongives to Congress the power "to make Rules for the Governmentand Regulation of the land and naval forces."It can be said with complete certaintythat no one in the eighteenthcenturyhad the intentto endow Congress withthe power to make rules for the regulationof an TheoriesofConstitutional Interpretation

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air force. But no reasonable person would conclude fromthis undisputed fact thatCongress does not now have thispower.48This is because the intentbehind the Clause would naturallybe understood as givingCongress the power to regulate the "military"or the "armed forces,"or some other such general concept. The point of Freund's example is that the intentof the Framerscannot be understood as the kindof simplehistoricalfactthatresistsinterpretation.It must instead be conceived as a purpose which can be characterizedin termsthat are more or less general.49Once thismove is taken,however,historicalinterpretation inimicalto the politicalpurposes of the Right. assumes a flexibility Historicalinterpretationis a ratheruncommonphenomenon in modern constitutionaladjudication. In part this may be due to the logical and evidentiary difficultiesinvolved in the effortto unearth historicalintentions.It is hard enough to ascertainthe intentionsof a livingindividual.It is harder stillto determine the intentionof a group of livingindividuals,like a legislatureor a Congress. The difficultyis compounded when the group of individuals is two centuriesremotein timeand the evidence of theirthoughtsand purposes is scattered, fragmentary,ambiguous, and conflicting.And the task is made almost impossiblewhen the relevantintentionspertainto questions whichin all probabilitynever occurred to thatgroup of individualsand whichare meaningfulonly in lightof circumstancesthatwould to thembe inconceivable. seems to presentstrongevidence It is the rare case indeed that,like Chambers, of original intentionon the precise question to be adjudicated. Even in such a case, as Brennan pointsout in his dissent,thelogicof democraticconsentrequires that the intentionsof those who ratifiedthe Constitutionbe controlling,rather than the intentionsof those who merelyproposed constitutionallanguage for popular adoption.50And, as Brennan cheerfullynotes, "'We know practically nothingabout what went on in the statelegislatures'during the process of ratifyingthe Bill of Rights."'5' It is importantto understand,however,thattheseobstaclesto historicalinterpretation,while formidable,are not necessarilyfatal.First,in any given case the available historicalevidence of intentmay be more or less compelling. Second, the nature of the evidence that will count as probativeof intentmay itselfbe and hence shaped in a entirelya matterof "generallyaccepted conventions,"52 manner designed to ease the course of historicalinquiry.For example, historical interpretationnow focuses on the intentof the Constitution'sframers,rather than of its ratifiers,because the formerare by common conventiontaken to be Papersare bycommon convention conclusiveof the latter.Similarly,TheFederalist now presumed to constituteauthoritative(and convenient)evidence of the intent of the Framers,although any historiancould easily demonstratethe empirical inadequacy of the presumption.This tension between the kind of evidence of intentnecessaryto legitimatepoliticalauthorityand thekindof evidence of intent necessary to persuade professionalhistoricaljudgment illustratesthe truthof 22

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Nietzsche's remark that "history,so far as it serves life, serves an unhistorical power."53Third, historicalinterpretationneed not focuson the intentionsof the Framersor Ratifiersat all, but may attemptinstead to ascertainconsent through inquiriesaimed at altogetherdifferentkindsof evidence.54 Ultimately,therefore,the infrequencyof historicalinterpretationin contemporary constitutionalinterpretationmay stem less fromevidentiarydifficulties than fromthe intrinsiclimitationsof any theoryof interpretationrestingon the authorityof consent.If thatauthorityis understoodto arise at the momentof the Constitution'sratification,then in fact no livingperson has "consented" to the FirstAmendment,or indeed to most of the Constitution.Why,it may be asked, should theconsentof our predecessorshave authorityoverus?55When faced with consenttheoristsoftenresortto notionsof "implied"or "tacit"conthisdifficulty, notions that rapidlydrain the concept of consentof itsabilityto legitimate sent, authority.These notions have a stopgap,jerry-builtquality that renders them In fact Hanna Pitkinhas demonstratedthat princiultimatelyunsatisfactory.56 pled consenttheoristslike Locke orJosephTussman,when seriouslypressed with the absence of actual consent,transformthe issue intoa question of hypothetical consent. "True authority"thus "emergesas being one to which[persons] oughtto quite apart fromwhethertheyhave done so."57 consent, A similartransformationis visiblein the arena of constitutionalinterpretation. Thus it is-said thateven if the "legitimacy"of the Constitutioncannot rest upon a prior act of consent,it mayneverthelessbe founded on the factthatpersons now ought to view it as "a good Constitutionand thereforeone worthyof continuing support."58This is essentiallythe form of constitutionalauthority Because interpretation appealed to byJusticeBrennan in his dissentin Chambers. founded on thisformof authoritymustultimatelybe accountable to contemporaryconcepts of value, I shall call it "responsiveinterpretation." ofethos.The classic statementof responsiveinterpretationis by Theauthority Oliver Wendell Holmes: When we are dealing withwords thatare also a constitutentact, like the Constitutionof the United States,we mustrealize thattheyhave called into lifea being the development of which could not have been foreseencompletelyby the most giftedof its begetters.It was enough forthemto realize or to hope thattheyhad created an organism;it has taken a centuryand has cost theirsuccessorsmuch sweatand blood to prove thattheycreated a nation. The case before us mustbe considered in the lightof our whole experience and not merelyof whatwas said a hundred yearsago.59

For Holmes the authorityof the Constitutionis not exhausted in a singlecreative act of consent,but continuesto inhere in the national "being" thatthe Constitution has "called into life." Hence the nature of that authoritycan be captured neitherbyrules laid down injudicial precedents,nor bynotionsof originalintenTheories of ConstitutionalInterpretation

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tion. The authoritymust rather be conceived as flowingfrom the "whole experience" of nationhood. That experience legitimatelyclaims our allegiance because we are necessarilyincluded withinit,and hence responsiblebothforwhat it has been and what it mightbecome. What is authoritativeis thus neithermore nor less than our common commitmentto the flourishingof the mutual enterprise of nationhood. The radical and paradoxical implicationof thisperspectiveis thatthe Constitution explicitlyloses its character as a specificdocument or a discrete text. It becomes instead, as Karl Llewellyn bluntlyput it, a "going Constitution,"a "workingConstitution"which has a contentthat "is in good part utterlyextraframework"of "the govDocumentary,"and which representsthe 'fundamental ernmentalmachine."60In thiswaytheConstitutionis transformedintowhat Kant mightcall the "regulative"idea of the enterpriseof constitutionaladjudication, the "imaginaryfocus fromwhich the concepts"of thatenterprise"seem to proceed, even though thereis nothingknowableat thatfocus."'6' The Constitutionas a regulativeidea definesthe telosand shape of constitutional interpretation:it demands a continualeffortto articulatethe authorityof our "fundamentalnature as a people" and hence concomitantlyto summon "us in the fullknowledge to our powers as co-foundersand to our responsibilities," that "how we are able to constituteourselves is profoundlytied to how we are In this sense responsive already constitutedby our own distinctivehistory."62 interpretationrequiresjudges to viewthe Constitutionas a formof whatPhilippe Nonet and Philip Selznick have called "responsivelaw,"law thatsubmitsto "the sovereigntyof purpose" byfunctioning"as a facilitatorof response to social needs and aspirations."63 There is a tension,however,betweenusing law to implementa successionof merelypresentpurposes, and using law to sustainthe "general ends"64constitutiveof our "fundamentalframework"of governance.The authorityof constitutional law inheres only in the latter,for it alone claims fidelityto the "whole experience" that has comprised "our distinctivehistory."To maintainits legitimacy,therefore,responsiveinterpretationmustbe oriented toward the kind of general ends that have been closely linked over the long run to an historical instantiationof national identity.But such ends can providethe basis foradjudication only if theycan also "be made objectiveenough and authoritativeenough to control adaptive rule making."65In this regard JusticeBrennan's dissent in Chambersis paradigmatic.His effortto inquire into "the underlyingfunctionof the EstablishmentClause" is specificenough to engender legal consequences, but general enough to express a deep vision of the secular nature of the American state. Although the theoryof responsiveinterpretationsounds exotic,responsive interpretationis in factrathercommon injudicial opinions (certainlymuch more so than historicalinterpretation).In thearea of the FirstAmendment'sguarantee 24

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of freedomof speech, forexample, the outcome of cases depends upon whether judges perceivethe purpose of thatfreedomto be thatof assuringan "unfettered interchangeof ideas forthebringingabout of politicaland social changes desired In bythe people,"66or instead thatof fostering"individuallibertyand dignity."67 the area of the constitutionalrightto privacy,the outcome of cases depends upon whetherjudges conceive the purpose of the Due Process Clause to be that of safeguardingthose "libertiesthatare 'deeply rooted in thisNation's historyand tradition,"68 or insteadthatof protectingintimatedecisionsof a kindthat"define one's identity."69 Responsive interpretationis in fact a vast umbrella shelteringa myriadof differentapproaches to the Constitution.It need not have the specificallyliberal cast that is visiblein Brennan's dissentin Chambers.It can be used by those who stressthe constitutionalpriorityof democraticdecision making and hence who emphasizejudicial caution and prudence, as well as bythose who stressthe constitutionalprimacyof individualrights.It has commonlybeen used byjudges and scholarsof both the Rightand the Left. It Responsive interpretationdoes, however,have an importantvulnerability. containswithinitno particularlypersuasiveresponse to thecounter-majoritarian If doctrinalinterpretationportrayscourtsas merelythe instrumentsof difficulty. the law, if historicalinterpretationportrayscourtsas merelythe instrumentsof an original democraticwill,responsiveinterpretationportrayscourtsinstead as arbitersof the fundamentalcharacterand objectivesof the nation. And why,it maybe asked, should courtsbe entrustedto act in thatcapacity,particularlywhen in doing so theyset aside alternativevisionsof the nationalcharacterand objectivespropounded by the democraticallyelected branchesof government? One possible response to this question, which is increasinglyvisible in the literature,is to stressHans-Georg Gadamer's theorythatall interpretationnecessarilyinvolves a conversationbetween a reader and a text,and so effectsa mergerbetweena textand a reader's own purposes and perspectives.Even ifthis theoryis accepted, however,it does not repair the vulnerabilityof responsive interpretation.This is because the theory'sthrustis entirelyto describe the conditions that make reading possible, and hence it can offerno guidance to the judge who, having determinedthe original intentof the Framersto the best of his ability(and thereforein a manner necessarilyinfluencedbyhis own perspective),mustdecide whetherto be bound by thatdetermination(like ChiefJustice or instead to set it aside in favorof a more self-consciously Burger in Chambers), The implicationsof herresponsiveapproach (likeJusticeBrennan in Chambers). meneutic insights for theories of constitutionalinterpretationare thus quite modest,a factthatis recognizedbyitsmore sophisticatedproponents. The acknowledgmentof these limitationsis, forexample, the point of David Hoy's distinctionbetween the "application"of a text,whichis "a prior cognitive operation where we firstfind the text to be saying somethingto us," and the TheoriesofConstitutional Interpretation

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"appropriation"of a text,which is "a willful,self-consciousact": "Applicationis not an option and is not subjective.But appropriation(e.g., makingthe textseem such thatit can be used or more ratherthan less relevant)is an optional strategy, avoided."70Responsive interpretationis a matterof appropriation,and as such cannot be defended bythe hermeneuticturn.

IV We are thus in a positionto connecteach of the three theoriesof conto a differentconceptionof constitutionalinterpretationdisplayed in Chambers whichfollowsthe principleof stare stitutionalauthority.Doctrinalinterpretation, decisis,invokesthe authorityof the Constitutionas law. Historicalinterpretation, whichimplementsan originalact of will,is validatedbythe authorityof the Conwhichengages in an ongoing prostitutionas consent.Responsiveinterpretation, cess of national self-definition, appeals to the authorityof the Constitutionas, for lack of a betterword, ethos. I will not make the strongclaim thatthese are the only possible conceptions of constitutionalauthority(and hence the onlypossible theoriesof constitutional but I willmake themore modestdescriptiveclaimthatthesethree interpretation), conceptions dominate the actual practiceof constitutionaladjudication. All the manymethods of constitutionalinterpretationthathave proliferatedin the legal literatureof the past decade, rangingfromthose thatstressthe values of democraticparticipationto those thatstressthevalues of autonomous individualism,7' ultimatelyrestupon one or another of these threeconceptionsof constitutional authority. Each of these formsof authorityis byitselfincompleteand incapable of sustainingthe enterpriseof constitutionaladjudication. The authorityof the Constitutionas law,forexample, requires the authorityof eitherconsentor ethos in order to initiatea chain of precedents.The authorityof consentand thatof ethos, on the other hand, each require doctrinalelaboration in order to findembodimentas law.The authorityof consentanchorsconstitutionalinterpretationin the democratic principles that are necessary and desirable in a country like the in United States, while the authorityof ethos offersan indispensable flexibility the interpretationof a document designed to last for the lifetimeof the nation. interdeYet if these three formsof authorityare on one level systematically As pendent,theyare at a differentlevel potentiallydivergentand incompatible.72 the Chambersdecision illustrates,a court in a constitutionalcase may be called and itsdecision upon to decide whichformof authorityshould governitsefforts, may determine the outcome of the case. Because this decision is most often understood to depend upon an antecedentcharacterizationof the Constitution

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(as, e.g., "law,""compact,"or "ethos"),argumentsabout theoriesof interpretation commonlymodulate into argumentsabout the inherent"nature" of the Constitution.To the extentthatthe three theoriesof constitutionalinterpretationare perceived as incompatible,it is due to the factthattheyare seen as flowingfrom incompatiblenotionsof the Constitutionitself. But thisvisionof constitutionalauthorityis fundamentallyflawed,forit postulates a formof constitutionalauthoritythat is externalto the processes of its own interpretation.It imaginesthatthe nature of the Constitutioncan somehow be determinedin a mannerwhichis independentof the practiceof constitutional interpretation,and thatthe practiceis thereforelogicallycontrolledbythisanteBut a betteraccount of the cedent determinationof constitutionalauthority.73 practice of constitutionalinterpretationwould situate constitutionalauthority instead in the relationship obtainingbetweenparticipantsin thatpracticeand the Constitution. Paradoxically, then, constitutionalinterpretationis not merely about the Constitutionbut about the more radical and profoundquestion of how we stand in connectionto the Constitution.

Thenatureoftheauthority oflaw. If we ask, forexample, whatit means to defer to the authorityof the Constitutionas law, the answer is that this authority and reliance which are necessary embodies the values of stability, predictability, to thelegitimacyof any modernlegal system.Not onlyare thesevalues themselves important,but theyare also the means bywhichthe law orders behavior so as to achievejustice and otherdesired objectives.The authorityof the Constitutionas law flowspreciselyfromthe acknowledgmentof these values. Once thispoint is made clear,however,it is also evidentthatthese values, no matterhow important,mayor maynotbe compellingin particularcircumstances. The values of the rule of law are mostpressingwhen thereis agreementthatthe itsproper purposes. In such circumlaw is generallyjust and otherwisefulfilling stances doctrinal interpretationand the principle of staredecisishold the law steadyon its course. But if thereis disagreementabout thejustice of the law,or about its purposes, or about its effectivenessin achievingthose purposes, then the balance can begin to tip away fromthe values of stabilityand predictability.74 At a certain point, when dissatisfactionwiththe statusquo reaches a sufficient magnitude,we can expect to see the doctrinalchain snapped.75 This means, however,thatthe authorityof the Constitutionas law does not stand outside the processes of constitutionalinterpretation,like an axiom in a geometricalproof,but is ratherimplicatedwithinthatveryprocess. In any specificcase we may question whetherthatauthorityis compellingenough to mandate a particularresult.Thus itis not theantecedent"nature"of the Constitution thatrequiresdoctrinalinterpretation, but ratherthedecision to recognizeand be

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bound by the values embodied in the authorityof the Constitutionas law. By acknowledgingthese values we create a certainrelationshipto the Constitution, one in whichthe authorityof the rule of law becomes visibleand pressing. In the American legal systemthisauthorityappears both flexibleand inevitable. It is not disabled even ifin particularcases we deny itsmandate and break with the principle of staredecisis.That is because when the chain of doctrine is overruled,a new decision broken and precedent is eitherexplicitlyor effectively must be announced, and for that decision itselfto have any effect,it must be craftedin the formof a rule of law thatwillbe respectedaccording to the prinis presupposed even ciple of staredecisis.This means thatdoctrinalinterpretation in the momentsof its repudiation. Thus although the practiceof constitutional adjudication at timesmay and sometimesmust depart fromdoctrinalinterpretation, it is a form of interpretationto which the practice will also inevitably return.

and theauthority natureoftheauthority ofethos.If docofconsent Thesymmetrical trinalinterpretationviewsthe Constitutiononly dimlyat one end of a long corridor of precedents,historicaland responsiveinterpretationeach confrontthe Constitution,so to speak, face to face. The directnessof this inquiryliberates courtsfromthe chains of doctrine,and empowersthemto alterand amend precedents. It also empowers them to uncover and articulatesubstantiveconstitutional values. For historicalinterpretation,thispower restson a court'sclaim to speak withthe authorityof an originalact of consent.For responsiveinterpretation,thispower restson a court'sclaim to speak withthe authorityof our deepest national identityand commitments.Although these claims appear on theirsurface to be verydifferent,as differentas Burger's majorityopinion in Chambers from Brennan's dissent, in fact they each share an underlying structural similarity. The authorityof consentrestson the capacityof the individualvoluntarilyto assume obligations.Absent special circumstancesto the contrary,a person'scontractsare viewed as binding and authoritative.This fact has importantconsequences forconstitutionalinterpretation.Imagine thedismayyou would feel,for example, if you were to have worked for and achieved the ratificationof a constitutionalamendment,say the Equal RightsAmendment,only to have it interpreted by a court in a manner flatlycontraryto your intentand to the intentof the amendment'ssupportersand ratifiers.In such circumstancesyou would want to implementthe ajudge to subordinateher personal perspectivesand faithfully act of consentbyvirtueof whichthe amendmenthad become authoritative.You would no doubt experience ajudge's departure fromthisdutyas a betrayal. The appeal of historicalinterpretationtradeson thisexperience of betrayal. It is importantto understand, however,that this experience does not depend 28

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upon anythingso simple as the physicalcastingof a vote. Constitutionalamendmentsare ratified,notbygeneralelections,but bystatelegislaturesor special state conventions.Your experience of betrayalwould depend, not upon whetheryou personally were a member of one of these special ratifyingbodies, but rather upon your identificationwiththose who had physicallysignifiedtheirconsent. What would count is your sense that the members of the state legislaturesor conventionswho had actuallyassented to the Equal RightsAmendment spoke "for"you. This same identificationcan extend in time as well as in space. Thus when confrontedwithconstitutionalprovisionsthatare a centuryor more old, histora comical interpretationcan be understood implicitlyto assertan identification, munityof interest,with the framersor ratifiersof those provisions. "Their" consent,so the implicitassertionwould go, is "our" consent; theyspoke "for"us. willin significantmeasure It followsthatthe authorityof historicalinterpretation Chief is whyin Chambers of assertion. That depend upon the persuasiveness that JusticeBurger offersan extended discussionof "theunambiguousand unbroken historyof more than two hundred years,"which he claims establishes"that the practiceof opening legislativesessionswithprayerhas become part of the fabric The power of Burger'sopinion restsin the end upon a claimed of our society."76 continuityof identificationwiththose who had proposed and ratifiedthe First Amendment. This claim, however,is neithermore nor less than a characterizationof the national ethos. It is a claim about our national identityand history.Thus while can at one level be seen as the debate between majorityand dissentin Chambers itcan at a deeper level strugglebetween historicaland responsiveinterpretation, be understood as a disagreementabout whetherwe can now identifywithour ancestors,or whetherwe have over the centuriesbecome so differentfromthem, so much more secular or diverse,thatwe have lost any persuasive identification withthe consentof those who ratifiedthe FirstAmendment.77 This deep symmetrybetween historicaland responsiveinterpretationstems fromthe factthatboth ultimatelyflowfromthe authorityof a willthataffirmsits own identity.78 Responsive interpretationmakes thisauthorityexplicit,because it forthe natureof our nationalethos.While historical openly affirmsresponsibility interpretationseeminglypresentsitselfas a self-denyingsubmissionto the identityof past ratifiers,closer analysisreveals thatthatidentityis authoritativeonly insofar as we can be persuaded to adopt it as our own.79In either case, the authorityof the Constitutionceases to stand apart fromthe processesof itsinterpretation.That authoritydoes not flowfromthe antecedentnature of the Constitution,but rather from the particularrelationshipwe have forged with the Constitution. In this regard, however,responsive interpretationis unique, for it alone explicitlythematizesthis relationalnature of constitutionalauthority.Both hisInterpretation TheoriesofConstitutional

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torical and doctrinal interpretationpurport to submitto a Constitutionwhose authorityis independent and fixed,eitherin the preexistingconsentof the ratifiersor in the preexistingrules of controllingprecedents. Although this submission is illusory,it is an illusion capable of disarmingdissent. Responsive interpretation,however,disavows this illusion,and franklylocates constitutional authorityin the relationshipbetween the Constitutionand its interpreters.As a consequence responsiveinterpretationgeneratesan intenseand singularkind of politicaldynamics. A good example is Brown v. Board ofEducation.80The decision did not turnon what the ratifiersof the FourteenthAmendment thought,8'nor on what the Instead theideal of racialequality Court had previouslyheld inPlessyv.Ferguson.82 was no alternativebut to interpret that there to the Court become so pressing had the Equal ProtectionClause in lightof itsimperatives.But preciselybecause this interpretationrestedupon an open avowal of a nationalideal, Brownrepresented a courageous gamble. The Court's embrace of the value of racial equalitycould have been a misreading of the national ethos; indeed the Court's gamble was intenselycontroversialand came close to failingpreciselybecause thatethos was in factso divided.83 By refusingto interpretthe Constitutionas if it were a source of external compulsion,eitherof past precedentor of past consent,responsiveinterpretation always places a court in such an exposed position,purportingto speak for the butjustifiedin the end only fundamentalethos of the contemporarycommunity, of conditions culturaldivision,thatposibythe wisdom of itsown insight.Under tion can be the platformfor a special formof leadership (as in Brown),or it can be the cause of the mostunhappy formof vulnerability(as in Roe v. Wade). Roe, which at the time of its decision stood withoutsignificanthistoricalor of responsiveinterprecedentialsupport,84illustratesthe structuralvulnerability pretationto thecharge thatitarticulatesvalues thatare merelylocal and partisan, ratherthan general and trulyconstitutiveof the nation.The charge is unlikelyto surfacewhen thereis culturalconsensus,because theinvocationof contemporary values will under such circumstancesbe unobtrusiveand perhaps even unnoticed. But in the absence of consensus the frankambitionof responsiveinterpretationto "speak for"the characterof the nation,while expressiveof the outlook of some, will necessarilyconstitutea hegemonicimpositionupon others.85Thus the enterprise of responsive interpretationcan become the locus of an overt strugglefor the definitionof national identity.In the legal academy responsive interpretationhas been profoundlycontroversialbecause of the unease generated by perceivedjudicial participationin such a struggle. Paradoxically,however,the root cause of thisunease is preciselyresponsive interpretation'sexplicitthematizationof the relational nature of constitutional authority,a formof authoritythatit in factshares withboth historicaland doctrinal interpretation.

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Responsive interpretation is in some The inevitability ofresponsiveinterpretation.

respectssimilarto what in the contemporarylegal literatureis called "noninterwhich can roughlybe defined as that formof constitutionalinterpretivism,"86 pretation which seeks "the principal stuffof constitutionaljudgment in one's renditionof society'sfundamentalvalues ratherthan in the document'sbroader is freand byextensionresponsiveinterpretation, themes."87Noninterpretivism, quentlyattackedas breakingfaithwitha judge's obligationto interpretthe Constitutionratherthan to enact her own desires. Understood in a psychologicalsense, the attackis clearlyjustified.If a judge believes thatthe Constitutionmeans X, but thejudge decides Y because she prefersY, thejudge's decision is presumptivelyillegitimate.But thisframingof the issue is ultimatelytrivial,for it proceeds on an assumptionof bad faith,and it prejudges the criticalquestion,whichis the nature of thatConstitutionto which is defined as rendering thejudge should maintainfidelity.If noninterpretivism factors,then it will of course be judgment upon the basis of extraconstitutional vulnerable,but only in an uninterestingand merelystipulativesense. Properly understood, however, responsive interpretationavoids this vulnerabilityby includingthe additional claim thatour "fundamentalnature as a people" is part of the legitimateauthorityof the Constitution. One objection to responsiveinterpretation,therefore,is thatit mistakesthe whichis "thatthe Supreme Court, "root premise"of Americanconstitutionalism, constrained constituby the written like the other branches of government,is whichexplicitlydissolvesthe tion."88The point is thatresponsiveinterpretation, Constitutionas a specificwrittentext,restson an unacceptable notionof the Constitution.The forceof thisobjection,whichis considerable,derives fromthe circumstance in whichthe words of the Constitutionappear to speak plainlyto us. Recall the case of the thirdCaliforniasenator,whicha courtcould settlemerely by reading the textof the document. In such a case it seems as if the document itselfwere authoritative,as if meaning flowednaturallyfromthat handwritten, hand-signed parchment kept under glass in the National Archives.89It would whichabandons thatdocument appear to followthatany theoryof interpretation is illegitimate.

This reasoning,however,proves far too much. It is true thatwhen the document'smeaning is unproblematicwe feel constrainedto regard its language as authoritativewithoutfurtherinquiry.But when for whateverreason the document'smeaningdoes seem problematic,we are necessarilyforcedoutside the text in search of some authorityto guide our interpretationof the text.Thus every is at some levelinconsistentwiththenotion theoryof constitutionalinterpretation of a narrowfidelityto a writtendocument.Doctrinalinterpretation, forexample, which is the sinequa non of constitutionaladjudication,applies not the words of the document, but legal rules thatjudges have subsequentlycreated. Most constitutionalcases are decided on the basis of doctrinal"tests"thathave verylittle Theories of ConstitutionalInterpretation

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to do withthe textof the parchmentwhichresidesin the National Archives.Even historicalinterpretationlooks for authoritynot to the textof the writtendocument,but ratherto theconsentof thosewho agreed to it.The charge thatresponsive interpretationabandons the writtendocument, therefore,is an accusation thatwould disqualifyvirtuallyall formsof constitutionalinterpretation. however,is thatit abandons A second objectionto responsiveinterpretation, the document in a particularlyunacceptable way. Historical interpretation focuses on an original act of consent because that consent "points toward" the it might document and illuminatesitsspecificmeaning.Doctrinalinterpretation, the toward" "point also rules such because precedent rules of on be said, focuses document and are attemptsto elucidate its meaning. Responsive interpretation, on the other hand, turns away from the document altogetherin an effortto uncover presentvalues. This objectioncaptureswhatI taketo be a major animusof thecontemporary debate, and forthatreason it needs to be carefullyparsed. It is true thatbecause historicalinterpretationlooks to the consentof the ratifiers,the historicaldocument actually ratifiedis central to the interpretativeenterprise.But doctrinal interpretationcan be said to "pointtoward"thatdocumentonlyin the mostattenuated metaphoricalsense, a sense in whichitis equally trueto saythatresponsive interpretation"pointstoward"the document. Responsiveinterpretationrestson theclaimthattheConstitutionis not"static and lifeless,"to use Brennan's words in Chambers.Instead, as Holmes put it, the Constitutionis understood as having "called into life a being" that, like any "organism,"must grow and develop on the basis of its "experience."90Thus the is to determinewhichaspects ambitionand challengeof responsiveinterpretation of our contemporaryethos maybe regarded as legitimate"growthfromthe seeds which the fathersplanted,"and hence as bearing "the essentialcontentand the spiritof the Constitution."9'Only these aspects of the national ethos are geneticallyrelatedto thedocumentand thusmayproperlyformthebasis forresponsive interpretation.In thissense responsiveinterpretationdoes indeed "point (backward) toward" the document, in at least as stronga metaphoricsense as does doctrinalinterpretation. Admittedlythe organic metaphor that underlies thisaccount of responsive interpretationis highlyproblematic.It is importantto understand,however,that responsive interpretationcould equally well restupon other and perhaps more convincingmetaphors. It could invoke, for example, the image of an evolving "tradition"thatis constitutiveof culturalmeaning.92Or it could adopt the sociological language of communitarianism,as in this passage fromPhilip Selznick: is tocreatea politicalcommunity by Itsfunction contract. is a constitutive A socialcontract on theconsentof thegoverned.Once thecomof government foundingthelegitimacy obligations ofitsown.Eventhefundamental is formedithasa logicand a dynamic munity and care-flow from of loyalty, self-restraint, and citizenry-obligations of government 32

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the nature of the communityand of its historicalpremises,not from the terms of an agreement.93

Each of these metaphors can be used to describe a national ethos that both changes over timeand yetalso manages to retaina distinctiveidentity.Each portraysa national ethos in whichwe are implicated,and to whichwe are therefore responsible.Each is thereforecapable of sustainingthe enterpriseof responsive interpretation. In these heady days of postmodernism,of course, it is easy enough to deny the truthof all these metaphors,and to repudiate the veryexistenceof any overarchingnational ethos. The politicalconsequences of such a denial, however,are articulatedby Thomas Hobbes, and grim. They were in factfirstsystematically today the premisesof his workremain visiblein the writingsof those influenced byeconomics and public choice theory.A clear example can be found in the views of a constitutionalscholarlikeRobertBork,who argues thatthereis no such thing as a distinctivenational ethos, but only a vast collection of individual preferences.94It followsfromthisperspectivethatany attemptto interpretthe Constitutionon the basis of the authorityof a nationalethoswillnecessarilydegenerate into an unwarrantedimpositionof privatejudicial preferences.95 Two preliminarypoints should be made about this perspective.First,it is withwhichit is sometimesassociated. inconsistentwithhistoricalinterpretation, Historical interpretationrests on the implicitassertion that the national ethos supports an identificationwiththe ratifiersof the Constitution.But if there are onlydiscreteindividualpreferences,and ifthe nationdoes not have any national ethos, there is no reason whateverwhy the consent of those long dead should hold any particularauthorityforthe presentgeneration.Second, as the example offeringa plausible account of Hobbes illustrates,this perspectivehas difficulty of political authorityas anythingother than a collectiveneed for forcefuland clear rules of conduct to save individualsfromthe destructiveconsequences of their own egoism. But this formof authority,stressingas it does the values of is compatibleonlywiththe authorityof the Consticontinuityand predictability, tutionas law,whichis to say withdoctrinalinterpretation.The actual implication of thisperspective,therefore,is thatthe principleof staredecisisshould hold until interruptedbycontemporaneousprocessesof constitutionalamendment. The consequences of denyingthe existenceof a national ethos are thus dramatic,far-reaching,and singularlyunattractive.It transformstheoverridingconcern of constitutionaladjudication into the maintenanceof rules (any rules), for only such rules stand between us and a chaos of individualdesires. Because the primaryobjectiveof these rules willbe the preservationof order,those subjectto constitutionalrules will necessarilybe reduced "to mere objects of the administered life."96The Constitutionis thusultimatelyconvertedintoa formof "repressive law" that"givesshortshriftto the interestsof the governed."97 TheoriesofConstitutional Interpretation

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This transformationis relevantto an assessmentof the position of scholars like Bork. Although the existenceor absence of a national ethos appears at first blush to be an empiricalquestion thatis independentof theperspectiveof a court, in fact mattersare not so simple. As the example of Brownv. Board ofEducation illustrates,a courtcan, throughthe eloquent articulationof public ideals, actually help to solidifya nationalethos.The nationalethos to whichresponsiveinterpretation appeals, in other words, may in significantways be affectedby the very practice of responsiveinterpretation.The question facinga court,therefore,is whetherit should interpretthe Constitutionin waysthatmayexpressor establish a national ethos,or whetherit should do so in waysthatmayconfirmitsabsence. I thinkthisquestion answersitself,whichis whyconstitutionalinterpretationhas never at any timeproceeded on Hobbesian premises. There is, however,yet a fourthobjection to responsiveinterpretation,one whichexertsconsiderablymore influencethanthe Hobbesian perspective.It does not deny that the nation has an ethos which formsan importantcomponent of its public life,but it contends thatit is inappropriateforjudges to appeal to that ethos as a formof constitutionalauthority,because the conservationand articulation of thatethos should be placed in the hands of democraticallyelected officials ratherthanjudges. The objection,in other words,restson an institutional analysisof how courts ought to functionin a democracy.It is of course on preis difficulty ciselysuch institutionalconsiderationsthatthe counter-majoritarian suggeststhe presultimatelyfounded. The stubbornpersistenceof the difficulty ence of powerfultruthsthatcannot be brushed aside. They are, however,only partial truths.If the Constitutionis not to degenerate into merelyrepressivelaw,authoritativeonlybecause of the need forclear and predictable rules, courts interpretingthe Constitutionmust be allowed to speak fromthe authorityof a national ethos, in the formof eitherhistoricalor responsiveinterpretation.Taken to itslogical conclusion,therefore,the counterleads to exactlythe same unacceptable vision of constitumajoritariandifficulty tional law as that which flowsfromovertlyHobbesian premises.98But thisconfor difficulty, sequence is unacceptable to proponentsof thecounter-majoritarian the institutionalconsiderationsbywhichtheyseek to circumscribejudicial power are themselvesbased on a particularaccount of the nationalethos,one thatcharacteristicallystressesthe importanceof majoritywillin the formof government Proponentsof the counter-majoritariandifficulty created by the Constitution.99 are thus torn between theiraccount of appropriate institutionalprinciplesand the factthatthese principles,if fullyimplemented,would precludejudges from appealing to the verynational ethos fromwhichthe principlesflow. Institutionalobjections to responsiveinterpretationare consequentlyriven by internaltensions.For thisveryreason, however,institutionalobjectionshave rarelyif ever implied a simple repudiationof responsiveinterpretation.Instead generated counsels of caution,urgentrecommendatheyhave characteristically 34

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tionsthatresponsiveinterpretationbe used onlysparinglyand in waysconsonant withthe underlyingconceptionof the nationalethosupon whichthe institutional objections are themselvesbased. They have led, in other words, to forms of responsiveinterpretationbased upon a particularunderstandingof the national ethos as founded upon majoritarianprinciples.'00

V The factthat identicaljudges use differenttheoriesof constitutional interpretationin differentcases is often used as evidence of the unprincipled theory natureof constitutionallaw.And, indeed, ifthechoice of an interpretative depended on the natureof the Constitution,and ifthatnaturewere antecedently and externallygiven,it would be difficultto condone the ways in whichjudges actuallyuse interpretativetheories.But if,as I have argued, constitutionalinterpretationdepends instead upon a relationalconcept of constitutionalauthority, judges can legitimatelyselect a specificinterpretativetheoryin lightof the circumstancesof a particularcase. Thus a court can justifiablyuse historicalinterpretationwith respect to an issue in a case ifit believes thatthe nationalethos supportsan identificationwith a past act of consent relevantto that issue. But it can justifiablyuse responsive interpretationifitcan discernwithrespectto thatissue the presence of a national embodies the essentialcontentand spirit ethos thatin a pertinentwayhistorically withany past act of consent. of the Constitution,and thatprecludes identification Hence the choice between historicaland responsiveinterpretationcan turn on an appraisal of the national ethos. The selectionof doctrinalinterpretationentailsa differentkindof appraisal, one thatrequires a court to determinewhetherthe values of the rule of law outweigh the inadequacy of controllingprecedents.An importantreason whyprecedents maybe inadequate is thattheyare inconsistentwiththe interpretationof the Constitutionrequired by the national ethos, eitherin the formof historical or responsiveinterpretation.The strikingof thisbalance betweenthe rule of law and the national ethos is both necessaryand legitimate. Thus the selectionof a specifictheoryof constitutionalinterpretationfor a particular case can be justified in the same way that any legal decision can be flowsnot fromlogicalcompulsionbut ratherfromthe prinjustified.Justification cipled application of pertinentconsiderations.Constitutionaladjudication, like all law,is in thisway revealed as balanced on the human facultyofjudgment. As in all human endeavor,pertinentconsiderationsmaybe more or less compelling, and consequentlythe abilityto exercisejudgment more or less sustained. Nevertheless,the patternofjudgment in constitutionallaw can reveal a good deal about the nature of fundamentalauthorityin our democraticstate. It sugTheoriesofConstitutional Interpretation

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gests,for example, that visionsof the national ethos, and hence of a "humanly meaningfulauthority,'' are at the core of our practiceof constitutionaladjudication. This is encouraging news to set againstthe viewof those who, likeJurgen Habermas and others,perceivethe tidalcurrentof thiscenturyas flowingtoward "undeviating organization,"'102 with its concomitantconditions of bureaucracy, But itis also cause forconalienation,deracination,and instrumentalrationality. cern if,as appears increasinglylikelyto be the case formanyof us, the vision of enacted by the Supreme Court is contraryto our national ethos authoritatively own. Our consolation in such circumstancesis the strengththat Claude Lefort identifieswithmodern democracy: the ever-presentpossibilitythatour protests willcreate a reconstitutedpoliticalperspectivethatwillin turnalterthe character of futurejudicial appointments. of course,simplypulls ErnestChambersround fullcircle, But thatpossibility, back to his original effortsto convincehis fellowlegislatorsof the deep impertinence of legislativeprayer.

Notes trans.David Macey (Minneapolis, 1988), andPoliticalTheory, 1. Claude Lefort,Democracy 39.

2. Testimony of Ernest Chambers, Marsh v. Chambers, 463 U.S.

3. 4. 5. 6. 7.

783 (1983), joint

appendix at 20, 23-24, 27. Testimonyof RobertE. Palmer,ibid. at 40-41, 45, 51, 83, 89; exhibit1, 1975 Prayer Book, 4 April 1975, ibid. at 96; exhibit2, 1977-78 PrayerBook, 7 February 1977, ibid. at 98. Although the clause speaks only of Congress, it has been held to be binding on the statesbyvirtueof the FourteenthAmendment. 504 F. Supp. 585 (D. Neb. 1980). 675 F. 2nd 228 (8th Cir. 1982). I stressthe phenomenological characterof thispoint. It is of course quite plausible But not to contend thatall reading is necessarilyactive,and hence "interpretative." to inquire into the meaning of a text. all reading requires a reader self-consciously From a phenomenological point of view,therefore,some reading does not require thatthe process of interpretinga textbe thematized.

8. United States v. Butler, 297 U.S. 1, 62 (1936).

9. It is necessaryat thispoint to distinguishbetween textualismas a putative"theory" of interpretation,designed to reveal the meaning of an uncertain text,and textualism as a rule of evidence or priority,which is designed either to exclude from considerationdata frombeyond the four cornersof the document or else to assign to the language of the textpriorityover such data. Textualismas a rule of evidence or prioritywould followfrom,and presumablybe justifiedby,an anteriortheoryof interpretation. 10. On the relationship between interpretationand situations where "meaning is

36

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11. 12.

13. 14. 15. 16. 17. 18. 19. 20.

21. 22. 23. 24. 25. 26. 28.

29. 31.

doubtful,"see Marcelo Dascal and JerzyWroblewski,"Transparencyand Doubt: 7 Understandingand Interpretationin Pragmaticsand in Law,"Law and Philosophy (1988): 203-24. It is clear, as Dascal and Wroblewskipoint out, thatthe distinction between meaning that is plain, that "fitsthe case under considerationdirectlyand as a glove to a hand," and meaningthatis questionable is not one unproblematically, thatturnson the "inherentqualityof a legal text"but is rather"pragmatic"in nature, turningon all the factorsinvolved"in a givencommunicativesituation"(215, 221). Marburyv. Madison,5 U.S. (1 Cranch) 137, 176 (1803). Ibid. at 163. The phrase was made famous in America byJohn Adams, who had Marshallwickedlyused itto pinionJohn appointed Marshallto thebench; in Marbury Adams's archenemy,Thomas Jefferson.For the derivationof the phrase, see Frank Michelman, "Foreword: Traces of Self-Government,"Harvard Law Review 100 (1986): 4, n. 2; 40-41. For a discussionof other strangecircumstancessurrounding Marbury,see John A. Garraty,"The Case of the MissingCommissions,"in Garraty, (New York, 1964). ed., QuarrelsThatHave ShapedtheConstitution Marburyv.Madison,5 U.S. at 163, 175. Alexander Bickel,TheLeastDangerousBranch(Indianapolis, 1962), 16-17. 60 U.S. (19 How.) 393 (1857). Dred Scottv. Sandford, 463 U.S. at 796 (Brennan,J.,dissenting). Marshv. Chambers, ofLegalJustification Decision:Towarda Theory See Richard A. Wasserstrom,TheJudicial (Stanford,Calif., 1961), 39-83. For a discussion of the nature of the rule of law, see Joseph Raz, "The Rule of Law and Its Virtue,"in TheAuthority ofLaw (Oxford, 1979), 210-19. For furtherdiscussion, see Melvin Aron Eisenberg, The Natureof theCommonLaw (Cambridge, Mass., 1988), 47-49. Henry Paul Monaghan, "Stare Decisis and ConstitutionalAdjudication," Columbia Law Review88 (1988): 752 (quoting Archibald Cox, TheRole oftheSupremeCourtin AmericanGovernment [New York, 1976], 50). See Vasquezv.Hillery,474 U.S. 254, 265Law Review10 (1941): 2. 66 (1986); Roscoe Pound, "Whatof Stare Decisis?"Fordham 675 F. 2nd at 233. forPublicEducationand Lemonv. Kurtzman,403 U.S. 602, 612-13 (1971). See Comm. v. Nyquist, 413 U.S. 756, 773 (1973). ReligiousLiberty Marshv. Chambers, joint appendix at 49. 37th sess. (1907), 171-73, 307-8, 805-6, 808, 818-2 1. CaliforniaSenateJournal, Marshv. Chambers, 63 U.S. at 801. 27. Ibid. at 788, 790. Ibid. at 786-88. This was essentiallythe positionadvocated bythe solicitorgeneral in his briefforthe "analysis United Statesas amicuscuriae.The solicitorgeneral argued thatin Chambers of the legislativechaplaincypracticeunder the Lemontestseems pointless"because "historicalanalysis . . . should alone sufficeto demonstratethatthe Nebraska chaplaincy"was consistentwith"the intended meaning and scope of the Establishment Clause"; ibid., Briefforthe United States,at 21-22. Ibid. at 801. 30. Ibid. at 802-5. Ibid at 816-17. As Brennan has subsequentlyexplained: "I franklyconcede that I approach myresponsibilityas a justice, as a 20th centuryAmerican not confinedto [the] framers'vision in 1787. The ultimatequestion must be, I think,what do the words of the Constitutionand Bill of Rightsmean to us in our time"; address by WilliamBrennan at Hyde Park,New York,TheRecorder, 8 November 1989, 8.

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37

32. Paul W. Kahn, "Reason and Will in the Origins of American Constitutionalism," Yale Law Journal 98 (1989): 504. 33. William W. Van Alstyne, "The Idea of the Constitution as Hard Law,"Journal ofLegal Education 37 (1987): 179. For a useful symposium on the subject, see Constitutional Commentary6 (1989): 19-113. 34. Osborne v. Bank of the United States,22 U.S. (9 Wheat.) 326, 381 (1824). 35. Eisenberg, Nature of CommonLaw, 158-59. 36. See J. M. Balkin, "Constitutional Interpretation and the Problem of History," New YorkUniversityLaw Review 63 (1988): 928. 37. Minneapolis Star and Tribune Co. v. Minnesota Commissionerof Revenue, 460 U.S. 575, 583, n. 6 (1983). 38. Lest this analysis seem too hypothetical, it should be noted that from 1967 until 1973 the Supreme Court decided thirty-one obscenity cases without opinion because it was unable to agree on a rule of law to distinguish obscene from nonobscene speech. See Frederick F. Schauer, The Law of Obscenity(Washington, D.C., 1976), 44. 39. For a similar argument in the context of statutoryinterpretation, see Edward H. Levi, An Introductionto Legal Reasoning (Chicago, 1949), 30-33. 40. In speaking of "legal implications," of course, I am excluding the immediate impact of the decision on the parties to the case. The effectof the Chambersdecision on the Nebraska state legislature is, at least for purposes of Chambers's specific lawsuit, independent of the principle of staredecisis.That principle only determines the effect of the decision on other, similarly situated legislatures. 41. Frederick F. Schauer, "Formalism," Yale LawJournal 97 (1988): 509-48. 42. See Ronald Dworkin, Law's Empire (Cambridge, Mass., 1986). 43. Paul Brest, "The Misconceived Quest for the Original Understanding," Boston UniversityLaw Review 60 (1980): 234. 44. Speech of Attorney General Edwin Meese III before the American Bar Association, 9 July 1985, Washington, D.C., in The GreatDebate: InterpretingOur WrittenConstitution (Washington, D.C., 1986), 9. 45. Charles Fried, "Sonnett LXV and the 'Black Ink' of the Framers' Intention," Harvard Law Review 100 (1987): 759. See H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review 98 (1985): 895-98. This version of historical interpretation might, for example, justify textualism as a rule of evidentiary exclusion. See note 9 above. 46. Monaghan, "Stare Decisis," 725. 47. See Raoul Berger, Federalism: The Founders'Design (Norman, Okla., 1987), 13-20. 48. The undeniable force of this conclusion also illustrates the ease with which constitutional interpretation escapes from the specific and plain words of the constitutional text. 49. For an elaboration of this argument, see Ronald Dworkin, A MatterofPrinciple (Cambridge, Mass., 1985), 33-57. 50. This was also James Madison's position; see The WritingsofJamesMadison, ed. Gaillard Hunt, vol. 6 (New York, 1900), 272; Powell, "Original Understanding," 937-38. 51. Marsh v. Chambers,463 U.S. at 815, n. 32; quoting Bernard Schwartz, The Bill offRights: A DocumentaryHistory,vol. 2 (New York, 1971), 1171. 52. Gerald C. MacCallum, Jr., "Legislative Intent," Yale Law Journal 75 (1966): 766-69. 53. Friedrich Nietzsche, The Use and Abuse ofHistory,trans. Adrian Collins (Indianapolis, 1957), 11. Hence the notorious "illicit love affair" between "Clio and the Court";

38

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54. 55. 56. 57.

Alfred H. Kelly,"Clio and the Court: An IllicitLove Affair,"SupremeCourtReview (1965): 119-58. See p. 21 above. For a discussion,see Brest,"MisconceivedQuest," 225-26. For the definitiveanalysisof thispoint,see David Hume, A TreatiseofHumanNature, 2nd ed., ed. L.A. Selby-Bigge(Oxford, 1978), 534-53. Hanna Pitkin,"Obligation and Consent," in Peter Laslett, W.G. Runciman, and Quentin Skinner, eds., Philosophy,Politics,and Society,4th ser. (Oxford, 1972), 62.

58. Daniel A. Farber,"The OriginalismDebate: A Guide for the Perplexed,"Ohio State Law Journal49 (1989): 1099-1 100. 59. Missouri v. Holland, 252 U.S. 416,433

(1920).

60. Karl Llewellyn,"The Constitutionas an Institution,"ColumbiaLaw Review34 (1934): 14-15, 26. 61. J. N. Findlay, Kant and the TranscendentalObject: A HermeneuticStudy (Oxford, 1981), 241.

62. Hanna Pitkin, "The Idea of a Constitution,"Journal ofLegal Education 37 (1987): 167,

169.

63. Philippe Nonet and Philip Selznick, Law and Societyin Transition: Toward Responsive

Law (New York, 1978), 14-15, 78. 65. Ibid., 77. 64. Ibid., 79.

66. Dun and Bradstreet,Inc. v. GreenmossBuilders, Inc., 472 U.S. 749, 759 (1985) (opinion

67. 68. 69. 70.

of Powell,J.). Ibid. at 787 (Brennan,J., dissenting). Bowersv. Hardwick,106 S. Ct. 2841, 2844 (1986). Ibid. at 2851 (Blackmun,J., dissenting). David Couzens Hoy, "A HermeneuticalCritiqueof the Originalism/Nonoriginalism Distinction," NorthernKentuckyLaw Review 15 (1988): 493, 495.

71. For a good survey,see WalterF. Murphy,James E. Fleming,and WilliamF. Harris, Jr.,American ConstitutionalInterpretation(New York, 1986).

72. Of course theyneed not be incompatible.Each of the threeconceptionsof authority can be understood in ways that render it functionallyindistinguishablefrom the others. Thus an original act of consent can be construedas mandatingon the one hand the rule of law, or on the other a continual,open sensitivityto the national ethos. The national ethos can be interpretedto require fidelityto precedentor submissionto the founders'consent; the principleof staredecisiscan be implementedin such a way as to express eitherthe national ethos or the imperativesof an original act of consent. The point,however,is thatthese potentialconvergencesare merelycontingent, and hence not trulydispositiveof the distinctionsthatdivide the threeconceptions of constitutionalauthority.For example, a judge who argues that constitutional authorityresidesin an originalact of consentthatalso happens to mandate sensitivity would to an evolvingnationalethos is committedto the positionthatsuch sensitivity be improperifthe contentof thatconsentwere different.Thus forsuch ajudge the discernmentof consentwould retaina privilegedposition. Fate: 73. For a path-breakingcritiqueof thisapproach, see Philip Bobbitt,Constitutional Theoryof theConstitution(New York, 1982).

74. As I writethis,forexample, the survivalof a woman'sconstitutionalrightto terminate a pregnancywithinthe firsttwotrimestersdepends to no smallextentupon the

Theories of ConstitutionalInterpretation

39

75.

76. 77.

78.

79.

80. 81. 82. 83. 84. 85.

40

v. value assigned by the Supreme Court to the principleof staredecisis;see Webster HealthServices,109 S. Ct. 3040, 3056-57 (1989) (opinion of Rehnquist, Reproductive forReproductive C.J.); ibid. at 3078 (Blackmun,J., dissenting);Akronv. AkronCenter Health,462 U.S. 416, 419 (1983). For examples, see UnitedStatesv.Scott,437 U.S. 83, 86-87 (1978); Garciav.San Antonio 469 U.S. 528 (1985). It is particularlyimportantthat TransitAuthority, Metropolitan past precedent not be entirelydecisive "in cases involvingthe Federal Constitution, where correction through legislative action is practicallyimpossible,"Burnet v. CoronadoOil and Gas Co., 285 U.S. 393, 405-8 (1932) (Brandeis,J., dissenting),and hence where, since the practiceof constitutionalamendmentis so cumbersomeand impractical,correctioncan in many circumstancesonly come as a practicalmatter when the Court itselfturnsawayfromstaredecisis.For thisreason theSupreme Court has a "considered practice not to apply staredecisisas rigidlyin constitutionalas in nonconstitutionalcases"; GliddenCo. v. Zdanok,370 U.S. 530, 543 (1962) (opinion of v.McLean CreditUnion,109 S. Ct. 2363, 2370-71 (1989). Harlan, J.). See Patterson 463 U.S. at 792. Marshv. Chambers, This suggeststhatwe should expect to see historicalinterpretationpredominate(at least in cases of firstimpression)in the years immediatelyfollowingthe ratification of a constitutionalprovision.During thattimetherewillbe an obvious and perceptible identificationwith the process of consent. But as the years pass, and as the connections to that process fade, the assumption of identificationmay become increasinglyless plausible or persuasive. Changed circumstancesor altered cultural conditionsmay make the consentof the ratifiersseem foreignor alien, quite unlike our own consent. It is at such momentsthatone would anticipatea transitionfrom historicalto responsive interpretation.Llewellynoffersa marvelous descriptionof thisprocess in "Constitutionas Institution,"12-15. In the words of Don Herzog, "The consentof the governedis a special case. It hangs not on the choices made by individualsbut on the responsivenessof the stateto the (Chicago, people, taken as a collectivebody"; HappySlaves:A CritiqueofConsentTheory 1989), 215. It is of course possible to argue thatwe should be bound bythe ratifiers'willeven if it does not reflectour own. But then it must be explained whythisis the case, and thatexplanation cannot invokethe authorityof consent.One possibleexplanationis that the governmentcouldn't functionif decisions made according to appropriate democratic procedures were to lose theirauthoritysimplybecause the passage of But thisexplanation,stressing timehad altered the relevantdemocraticconstituency. as it does the necessityfor the Constitutionto remain in effectas law in order to would logicallylead to a reliance,and predictability, sustainthe values of continuity, formof doctrinal,ratherthan historical,interpretation. Brownv.Board ofEducation,346 U.S. 483, 489-95 (1954). of Brownwithany formof historicalinterpreFor a discussionof the incompatibility tation,see Monaghan, "Stare Decisis," 728. Plessyv.Ferguson,163 U.S. 537 (1896). See, e.g., Cooperv.Aaron,358 U.S. 1 (1958). and Distrust(Cambridge,Mass., 1980), 2-3. In recentyears, John Hart Ely,Democracy withthe advantage of hindsight,more convincingargumentshave been made that Roe could seriouslybe justifiedas a formof doctrinalinterpretation. For a discussion of the distinctionbetween expressiveand hegemonic functionsof law,see RobertC. Post,"Cultural Heterogeneityand Law: Pornography,Blasphemy, Law Review76 (1988): 299-300. and the FirstAmendment,"California

REPRESENTATIONS

Law Review 86. See Thomas C. Grey,"Do We Have an UnwrittenConstitution?"Stanford Ken27 (1975): 703-18; David Lyons,"A Prefaceto ConstitutionalTheory,"Northern

tuckyLawReview 15 (1988): 459-98. 87. Ely, Democracyand Distrust,88, note.

Law Review 88. Henry Paul Monaghan, "Our PerfectConstitution,"New YorkUniversity 56 (1981): 375-76 (emphasis added). 89. For the fascinatingsuggestionthatwe may have actuallyenshrined the wrong document, see Akhil Reed Amar, "Our ForgottenConstitution:A Bicentennial Comment," Yale Law Journal 97 (1987): 281-98.

90. For a briefdiscussionof the historyof "organic"metaphorsof the Constitution,see

Michael Kammen, A Machine That WouldGo ofItself:The Constitutionin AmericanCulture

(New York, 1986), 19-20. 91. The words are those of ChiefJusticeCharles Evans Hughes, in HomeBuildingand Loan Assoc. v. Blaisdell, 290 U.S. 398, 443-44

(1934).

92. See, e.g., Hans-Georg Gadamer, Truthand Method(London, 1975); Alasdair MacIntyre,AfterVirtue(Notre Dame, Ind., 1981). 93. Philip Selznick,"The Idea of a CommunitarianMorality,"CaliforniaLaw Review75 (1987): 451. 94. On the distinctionbetween preferencesand values, see Mark Sagoff,"Values and Preferences,"Ethics96 (1986): 301-14. 95. "Everyclash betweena minorityclaimingfreedomand a majorityclaimingpower to of the two groups. When the regulate involvesa choice between the gratifications Constitutionhas not spoken, the Court will be able to findno scale, other than its own value preferences,upon which to weigh the respectiveclaims to pleasure"; RobertH. Bork, "Neutral Principlesand Some FirstAmendmentProblems,"Indiana Law Journal 47 (1971): 9.

trans.John 96. Theodor W. Adorno and Max Horkheimer,DialecticofEnlightenment, Cumming (New York, 1972), 38. As Adorno and Horkheimerobserve, "so long as with the identityof the user of reason is disregarded,"reason acquires an "affinity" "force"(87). 29. 97. Nonet and Selznick,Law and Society, 98. One alternativeconclusion,of course, is thattherebe no constitutionallaw at all, but only simple majorityrule. The point in text assumes that those propounding the counter-majoritariandifficultyare attemptingto offer a characterizationof an appropriate,ratherthan nonexistent,formof constitutionallaw. and Distrust; 99. For a clear example of this formof argumentation,see Ely,Democracy fora general discussion,see Farber,"OriginalismDebate," 1097-1100. 100. See, e.g., Richard H. Fallon,Jr.,"A ConstructivistCoherence Theory of Constitutional Interpretation," Harvard Law Review 100 (1987): 1217-23.

in theModernState(New Brunswick,N.J., 101. The phrase is fromJohn Schaar,Legitimacy 1981), 38. 102. Adorno and Horkheimer, Dialectic ofEnlightenment,87.

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41