Constitutional Horticulture: Deliberation-Respecting Judicial Review

In this piece, Professors William N. Eskridge, Jr. and John Ferejohn explore two ways of looking at constitutional design.  One perspective is an engineering perspective, where the constitution designer hard-wires the system to proceed in technical, specific ways and then turns it loose to operate without the designer’s guidance.  Per this perspective, one can compare constitutional design to watchmaking.  Another perspective is a horticultural one.  Per this perspective, the constitution designer plants a figurative garden, the original design of which changes as the political and legal foliage grows and is nurtured by the designergardener.  The general purposes and powers of the constitution sprout and develop as they are cultivated by implementing individuals and institutions.  Indeed, depending on the environment and the gardeners at play, the constitutional tree may flourish, succeed, and reproduce, or it may devolve into a gnarled, leafless stump with disagreeable vermin occupying its hollows. 

Professors Eskridge and Ferejohn suggest that the horticulture metaphor offers many advantages for constitutionalists.  For instance, many important institutions of public law cannot be hard-wired in a constitution.  Furthermore, the horticultural perspective is a more realistic and productive way to understand constitutionalism.  In contrast, engineering metaphors inspire interpreters to maintain the original design by seeking the original meaning of constitutional provisions, and this can be a challenging enterprise.  The better, horticultural metaphor inspires interpreters to continue the shared constitutional project in a way that allows it to flourish and contribute to the public interest. 

However, the engineering metaphor may offer an advantage in that unelected judges—the primary interpreters of our Constitution—may trump the democratic process in enforcing constitutional values.  Because the engineering design forces these judges to follow original constitutional meaning, this design probably reduces the probability of judges merely reading their values into the Constitution.  The horticultural design, to its detriment, runs the risk of granting judges the power to tend the constitutional garden as they see fit, even without the pretense of following the original plan.  In the same way that ignoring a literal garden’s plans can yield an unsavory or incomplete harvest, ignoring a constitution’s original meaning can produce unappetizing results.  Yet, because our Constitution is so old, short, and difficult to amend, there is no original meaning for judges to “discover” as to many issues.  Accordingly, the engineering-oriented judge receives no more guidance that the horticulture-oriented judge.  This creates a genuine constitutional dilemma for both design perspectives. 

Professors Eskridge and Ferejohn suggest a way out of this dilemma: judges should behave like good horticulturalists by paying close attention to what the metaphorical plants and doing and how they are evolving.  In the political world, this means that judges should listen and respect other institutions.  In other words, they should be deliberation-respecting.  The role of judges should be to facilitate, and occasionally, guide the work of the gardeners.  Consequently, judicial review should avoid limiting democratic deliberation, should respect the results of such deliberation, and should create constitutional floors only when such a decision is supported by deliberation among various represented interests.