Jack M. Balkin
91 Texas L. Rev. 1687
In 2000, an outcry erupted at La Scala Opera House when conductor Riccardo Muti led a performance of Il Trovatore that omitted the tenor’s famous high C. In this Article, Professor Balkin argues that Muti’s explanation—that the C did not appear in Verdi’s original score—is, like many originalist arguments, more radical than it initially appears. Comparing Muti’s interpretation of Verdi to decisions such as Bolling v. Sharpe, Professor Balkin claims that musical performance provides a more useful analogy to legal interpretation than other art forms because of the role of the audience in shaping a work over time. Law, like music, involves a triangle of interpretive influences: the Framers (composers), the Judiciary (performers), and the public (the audience).
Professor Balkin argues that law and the performing arts use similar modalities of interpretation, and that both are constrained by convention and genre. In Verdi’s time, performer interpolation was expected, and Verdi approved the high C that later became an expectation. In this context, Muti’s interpretation was radical. Proponents of the C can use Verdi’s approval as an argument from intent, or use the subsequent predominance of the C as an argument from precedent. A powerful argument from ethos also exists: the spirit of Italian opera is to embrace the dramatic finale. In the same way, defenders of the result in Bolling v. Sharpe might argue that the arc of the Constitution bends toward justice, and that a judge who refuses to integrate the District of Columbia schools because of a too-narrow construction of the Constitution’s words does not really understand the great narrative of American progress. Professor Balkin emphasizes the importance of the audience in both law and musical performance in determining whether radical interpretations such as Muti’s become mainstream.
In closing, Professor Balkin addresses the most evident difference between musical interpretation and legal interpretation: in United States law, the goal is uniform interpretation, whereas in music, multiple interpretations are welcomed. Professor Balkin notes that this goal of uniformity is not intrinsic to law, however, but a product of the hierarchical American legal system. As illustrated by different expectations in opera than in other musical genres, the most important shapers of judicial interpretation are institutional.
Amy Coney Barrett
91 Texas L. Rev. 1711
Over the years, some have lamented the Supreme Court’s willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule. Professor Barrett argues that one overlooked virtue of this weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court, i.e., it functions to mediate jurisprudential disagreement. The doctrine of stare decisis avoids entrenching particular resolutions to methodological controversies while simultaneously limiting precedential reversal by placing the burden of justification on those justices who favor it. Yet, insofar as it keeps open the prospect of overruling, the weak presumption undeniably comes at a cost to continuity.
Professor Barrett notes, however, that continuity on the Court does not rely as heavily on the strength of stare decisis as is commonly supposed and gives supporting examples such as the prohibition upon advisory opinions, the obligation of lower courts to follow Supreme Court precedent, the Court’s certiorari standards, its rule confining the question at issue to the one presented by the litigant, and the fact that the Court is a multimember institution whose members have life tenure.
Mitchell N. Berman & Kevin Toh
91 Texas L. Rev. 1739
Current proponents of the view articulated by originalists maintain that, subject to a few standard qualifications, judges deciding constitutional cases must enforce the constitutional law. On the other hand, most proponents of the view articulated by nonoriginalists presumably reject the idea that the constitutional law consists solely of the meanings of the inscriptions in the constitutional text. Yet, despite such disagreements between originalists and nonoriginalists, their respective views are not, strictly speaking, inconsistent.
In this Article, Professors Berman and Toh seek, first, to discredit the combinability problem and thereby facilitate development and eventual acceptance of pluralistic nonoriginalism. The Article does not solve the combinability problem. Rather, it dissolves it by exposing and making explicit a number of assumptions and predilections among constitutional theorists that are very much dispensable in favor of more credible alternatives. The bottom line, it argues, is that whether an originalist or nonoriginalist view of what our Constitution or constitutional law consists of is better than others depends on the fundamental constitutional facts of our legal system, and that there are no a priori grounds for thinking that a pluralistic nonoriginalist conception of those fundamental constitutional facts is a nonstarter. Second, the Article seeks to devise a pluralistic nonoriginalist conception of constitutional law that is clear and plausible enough to provide a focal point for debates about constitutional interpretation.
James E. Fleming
91 Texas L. Rev. 1785
In recent years, some have asked: “Are we all originalists now?” Professor Fleming’s response is: “I hope not!” In this Article, Professor Fleming explains why. But first, he shows that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what Professor Fleming calls “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, according to Professor Fleming, just has to be. By definition. In the nature of things—in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation. This Article sketches some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.
Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what Professor Fleming calls “constructivist.” A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we—self-styled originalists no less than the rest of us—always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend—in the name of originalism—that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to abstract moral principles and ends. Professor Fleming argues that fidelity in interpreting the Constitution as written requires a philosophic approach to constitutional interpretation. No approach—including no version of originalism—can responsibly avoid philosophic reflection and choice in interpreting the Constitution.
B. Jessie Hill
91 Texas L. Rev. 1815
This Article approaches the law–politics divide from a new angle. Drawing on the insights of literary theory, this Article argues that every act of interpretation, including constitutional interpretation, inevitably draws not only on text but also on context, and that the relevant context extends beyond both the written document and the historical context of its origination. This understanding derives from speech-act theory and from postmodern literary theory. As Paul de Man argues in his seminal essay, The Resistance to Theory, moreover, the act of interpretation always encompasses a “pragmatic moment” that undermines the effort to attain perfect theoretical coherence. Applying this perspective to constitutional interpretation, this Article argues that neither constitutional theory nor politics, on its own, is capable of fully explaining constitutional interpretation and constitutional change.
In illustrating this phenomenon, this Article draws on recent scholarship about the recent evolution of constitutional doctrine in two areas—the Fourteenth Amendment and the religion clauses of the First Amendment—to demonstrate the dialectical interplay among text, principle, and pragmatism in constitutional interpretation and constitutional change. Although the insights regarding the sources of constitutional change in these areas are not new, the original contribution of this Article lies in its reconfiguration of the theoretical understanding of how, and why, this change inevitably occurs.
Randy J. Kozel
91 Texas L. Rev. 1843
Constitutional precedents give rise to a jurisprudential tug-of-war. On one side is the value of adhering to precedent and allowing the law to remain settled. On the other side is the value of departing from precedent and allowing the law to improve. In this Article, Professor Kozel contends that negotiating the tension depends on bridging the divide between constitutional precedent and interpretive method.
Professor Kozel aims to analyze the ways in which theories of precedent are, and are not, derivative of overarching methods of constitutional interpretation. He seeks to demonstrate that although certain consequences of deviating from precedent can be studied in isolation, the ultimate choice between overruling and retaining a past decision requires the integration of a broader interpretive method. Moreover, because a single interpretive philosophy may be derived from varying normative baselines, constitutional lawyers must press beyond the threshold election of competing methodological schools to engage with the schools’ respective foundations. Whether one’s preferred approach is originalism, living constitutionalism, or otherwise, the importance of implementing a given constitutional rule depends on methodological commitments and the normative premises that inform them.
Gillian E. Metzger
91 Texas L. Rev. 1897
Federal administrative agencies often engage in “administrative constitutionalism” when interpreting and implementing the U.S. Constitution. Defining administrative constitutionalism as the straightforward application of established constitutional requirements would unduly limit the scope of the concept however. Administrative constitutionalism also encompasses the elaboration of new constitutional understandings by administrative actors, as well as the construction (or “constitution”) of the administrative state through structural and substantive measures. Identifying administrative constitutionalism’s various forms highlights the central challenges confronting it as a form of constitutional interpretation. Administrative constitutionalism efforts are often embedded in ordinary law contexts, and thus lack transparency. This embedded nature poses a real accountability challenge linked to the difficulties of identifying instances of administrative constitutionalism. Therefore, greater transparency is essential to the legitimacy of this method of constitutional development. However, greater transparency invites more political or judicial veto, thus deterring administrative constitutionalism from occurring. Professor Metzger lays out a potentially fruitful approach to increasing transparency without deterring valuable administrative constitutionalism. The approach encourages more overt administrative engagement with constitutional concerns through the mechanisms of ordinary administrative law. Although this approach has its merits with regard to administrative constitutionalism, Professor Metzger argues against extending its doctrinal and normative implications to constitutional construction more generally. There are good reasons to resist erasing the doctrinal distinction between constitutional and ordinary law across the board, even if limiting the approach to the administrative context leads to some inconsistency between lived constitutional practice and constitutional doctrine.
Neil S. Siegel
91 Texas L. Rev. 1937
An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.
In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for Congress to address the problem by relying on the Commerce Clause. Unlike nationalist defenders of unlimited federal commerce power, a collective action approach does not ask whether the regulated conduct substantially affects interstate commerce in the aggregate. Unlike federalist defenders of limited federal commerce power, a collective action approach does not focus on the distinction between economic and noneconomic conduct, or between regulating and requiring commerce.
Accordingly, nationalists may agree that a collective action problem is sufficient for Congress to invoke the Commerce Clause, but they will disagree that it is necessary. By contrast, federalists may agree that a collective action problem is necessary for Congress to invoke the Commerce Clause, but they will disagree that it is sufficient.
This Article anticipates such criticism. Regarding the nationalist critique of a collective action approach, Professor Siegel argues that the nationalist “substantial effects” test imposes no judicially enforceable limits on the scope of the Commerce Clause. He also argues that nationalists may define multistate collective action problems too narrowly. In addition to races to the bottom, collective action problems include interstate externalities that do not cause races to the bottom.
Broadening the definition of multistate collective action problems to include interstate externalities gives rise to the federalist objection that every subject Congress might want to address can plausibly be described as a collective action problem. Federalists may further object that the Commerce Clause is limited to “Commerce.” In response, Professor Siegel argues that “Commerce” is best understood broadly to encompass many social interactions outside markets, as Professors Jack Balkin and Akhil Amar have urged. Professor Siegel also argues that a collective action approach need not validate unlimited federal commerce power. Specifically, he identifies three ways of limiting the kinds of interstate externalities that justify use of the Commerce Clause.
David A. Strauss
91 Texas L. Rev. 1969
In what sense is the Constitution we live under today the product of “we the people”? Despite the appeal of assigning a meaningful democratic pedigree to our Constitution, Professor Strauss identifies several questions that suggest that our Constitution is more the product of they the people, and that our system of common law constitutionalism has departed from what the ratifying and amending generations intended. The idea of common law constitutionalism is that we resolve controversial questions of constitutional law not by examining the text of the Constitution but on the basis of precedents, both judicial and non-judicial, combined with judgments of fairness and good policy. Professor Strauss demonstrates how common law constitutionalism can be democratic, despite the fact that it allows unelected judges to override the elected branches through judicial review. Contrary to appearances, a judge-centric system is democratic for several reasons. First, although federal judges do not run for office and cannot easily be turned out of office, they are embedded in a democratic system. Second, precedent reflects popular sentiment to a degree. Finally, judicial review itself will become vulnerable if the courts deviate from public opinion too much and too often. Therefore, although our written Constitution was the work of they the people, our evolutionary Constitution is, in important ways, the work of we the people.
91 Texas L. Rev. 1983
Alexander Hamilton’s observation that the people of the thirteen colonies were the first to be given the opportunity to define their constitution “from reflection and choice” rather than “accident and force” may have been accurate, but that opportunity now extends to people everywhere. The precise issues that constitution makers confront vary widely and depend on the specific historical circumstances under which they operate. Generalizations are difficult, perhaps impossible, to come by. Yet, we can identify some issues about constitutional design that arise repeatedly. Focusing on some of those issues, this Essay examines some of the more important conceptual and practical issues associated with modern constitution-making. Part I asks: Why make a constitution? Part II examines the definition of the people for and perhaps by whom the constitution is being made, and Part III turns to questions about the inclusiveness of the constitution-making process. Part IV takes up questions about the scope and comprehensiveness of the constitution. The conceptual and practical role played by the “constituent power” in constitution-making is a pervasive theme.