Interpreting the Constitution
Arguments over how the Supreme Court should construe ambiguous constitutional terms have bedeviled the Republic since its founding. In essence, the fierce debate is fueled by the idea that federal judges, who are appointed for life, are for all practical purposes unaccountable for their decisions. Given the fact that the nation's primary political commitments are to its democratic processes, the question becomes what restraints limit the power of--to use Justice Scalia's shrill term--the "Imperial Judiciary." Although senators frequently state during confirmation hearings that judges should "apply" the law, not "make" it, everyone knows that judges make law, at least in the sense that most important cases arise under constitutional provisions that are so broad that a judge has ample latitude to decide in any of several different ways. Thus, debates over how to interpret the Constitution often boil down to one's attitude toward judicial discretion. If broad judicial discretion is understood as a mask hiding judicial imposition of personal views on the nation, the odds are that one would strongly favor an interpretive theory such as originalism or literalism, which aim at sharply confining judicial discretion. If judicial discretion is considered intrinsic to the enterprise of interpreting the Constitution--as Chief Justice John Marshall, who certainly favored investing the judiciary with substantial power, believed when he wrote almost 200 years ago, "We must never forget that it is a constitution we are expounding"--and if judges are considered an important brake on misguided democratic impulses and a critical last resort for protecting political minorities and basic personal liberties, one is likely to favor construing the text of the Constitution not only by reference to its structure and history but also to traditions and perhaps moral and political theories.
It is within this crucible that Sunstein attempts to ride the middle ground. Because he often defines his approach to interpreting the Constitution by contrasting it with others, it is helpful to review interpretive theories he rejects. Sunstein takes the interpretive doctrine known as originalism and championed by Justice Scalia (as well as former Judge Robert Bork) to the woodshed. That doctrine asserts that judges are obligated to construe the Constitution in accord with the meaning given it by those who wrote and ratified it. Scalia argues that such an approach limits judicial discretion and protects the political branches from undue judicial interference. Many of the basic problems in Scalia's thinking are helpfully identified by Sunstein: Scalia's approach causes judges to precommit themselves to outcomes in future cases even though they may lack information or do not fully understand the values at stake; they may short-circuit the democratic process in doing so. Scalia's originalism also fails to promote democracy because it does not come to terms with the internal morality of democratic ideals. And neither is originalism the only interpretive approach to the Constitution that would limit judicial discretion, promote stability and enhance democratic self-government.
Sunstein's next targets are interpretive theories that reject the originalist claim that the meaning of the Constitution is tethered to historical understandings. Instead, they direct judges to employ values and perspectives not explicitly mentioned in the Constitution to interpret its ambiguous provisions, and they urge that judges act in accord with their best understanding of what makes "best sense of the relevant provision." Sunstein places into this category theorists who are thought of as political liberals (such as Ronald Dworkin and Laurence Tribe, who advocate personal rights) as well as theorists who are political conservatives (such as Richard Epstein of the University of Chicago Law School, who supports property rights), but he mainly aims his fire at Dworkin. He claims that Dworkin "thinks that the [Supreme] Court should be willing to invalidate legislation if good arguments from principle suggest that legislation is invalid, at least if those arguments 'fit' with the existing legal materials." Sunstein claims that Dworkin's effort to turn the Court into a forum that declares high principles seriously "misconceives the role of the Supreme Court in American government, a role that very much grows out of the Court's understanding of its limited capacities and its potential for error."
Sunstein also criticizes the view that the Court should invalidate legislation only when such outcomes reinforce the democratic process. This perspective holds that the courts should act "to improve the democratic character of the political process...by protecting rights that are preconditions for a well-functioning democracy, and also by protecting groups that are at special risk because the democratic process is not democratic enough." Sunstein finds this approach, which is generally associated with its most prominent proponent, John Hart Ely, seriously flawed for two reasons. Any theory of judicial review must be built on substantive reasons, Sunstein contends, and Ely's process-oriented approach fails to identify those specifically. Limiting a court's ability to strike down laws to circumstances in which that would reinforce democracy is too restrictive; courts must also invalidate legislation that conflicts with minimal substantive guarantees.
Sunstein's approach to interpreting the Constitution begins with the text, but he does not believe it answers all or even most of the important questions presented to the Supreme Court. Because our founding document is "open-ended," Sunstein claims that the interpreter must examine the structure of the constitutional plan, which provides a "degree of assistance." Here again, however, Sunstein concedes that structure goes only so far in helping to interpret important aspects of the Constitution involving such matters as "scientific speech, government funding of the arts and public education, affirmative action, abortion, campaign finance regulation, or pornography." In these circumstances, Sunstein states that it is "reasonable to look to history," even though there are "major limits" to this approach. He concedes that many constitutional issues may be properly resolved only by resorting to "ideas external to text and structure," which must be justified in "moral and political terms."
But having once made that concession, Sunstein emphasizes what in his mind is an important point: He claims that it is necessary only that judges have "good...rather than bad" interpretive principles and that this is a far cry from insisting that judges "make the law 'the best it can be'" by identifying it with broad principles of political philosophy. Thus, although Sunstein identifies what he believes to be a "set of minimal substantive commitments" on which US law "has converged"--including the right to free political dissent, protection against discrimination on the basis of one's religious beliefs, freedom from torture and police abuse, and freedom from subordination on the basis of race and sex--he opposes the Court's protecting such commitments by rulings that hinge on broad principles of political theory. Instead, the Court should rule narrowly, deciding only what is needed to dispose of the dispute at hand. Thus, in disputes involving affirmative action, homosexuality, gender, free speech and the right to die--to name only a few--Sunstein favors emphasizing the particular aspects of a case and avoiding rulings cast on principled conceptions of human dignity, individual liberty and substantive equality (the democratic process itself, not the judiciary, should respond to these divisive matters, in his view).
Sunstein's endorsement of reaching outside the Constitution for values to use in interpreting it leaves him vulnerable to the charge that he favors judges making law out of whole cloth. His denial that this permits judges free rein makes him seem inconsistent, and lumps him as well into a cadre of legal intellectuals who deny that a judge's political and social values powerfully influence his or her constitutional interpretation. Sunstein's refusal to root the values and perspectives he favors in broad principles of political morality, combined with his insistence that the Court develop constitutional doctrine by means of limited, narrowly conceived rulings, opens him to the charge of favoring an ad hoc, unprincipled approach to interpreting the Constitution.