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Theories of Constitutional Interpretation ROBERT POST Theories of Constitutional Interpretation Moderndemocracy invites us toreplace the notion of a regimefounded upon laws, of a legitimatepower, by the notion of a regimefounded upon the legitimacyof a debate as to what is legitimateand what is illegitimate-a debatewhich is necessarily withoutany guarantor and withoutany end. -Claude Lefort' IN 1979 ERNEST CHAMBERS was a barber who had for nine years rep- resented a predominantlyblack districtof Omaha in the Nebraska Unicameral Legislature. He had been brought up in "a religiousstrait-jacket" in the funda- 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 with prayer.In facthe feltcompelled to leave the legislativechamber, so thathe and the chaplain were "almostin a race to see whether"the chaplain could "get to the frontbefore" Chambers could "get out the back door."2 The chaplain of the Nebraska Legislature during that time was Robert E. Palmer, a Presbyterianclergyman who had ministeredto the legislatorssince 1965. His prayerswere short,almost perfunctory.He stroveto make them non- sectarian,to reflect'just civilreligion in America,"which he understood to consist of "the Judeo-Christiantradition," the "kind of religious expressions that are common to the vast, overwhelmingmajority of most all Americans."He viewed the purpose of his prayersto be the provisionof "an opportunityfor Senators to be drawn closer to theirunderstanding of God as theyunderstand God, in order thatthe divine wisdom mightbe theirsas theyconduct theirbusiness forthe 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 workingtogether to win the game for the benefitof the people of thisstate."3 Chambers attemptedto convince his colleagues to end the practiceof legis- lative prayer.When theyrefused, he took the characteristicallyAmerican step of filingsuit in federal court. His claim was elegantlysimple: the paymentof a state salary to the ministerof a single Christiandenomination for fourteenyears for the purpose of offeringofficial prayers to the state legislaturewas a violationof the EstablishmentClause of the FirstAmendment to the United States Consti- tution. That clause provides: "Congress shall make no law respectingan estab- lishmentof religion."4 REPRESENTATIONS 30 * Spring 1990 (? THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 13 The trialcourt held thatwhile the paymentof the chaplain's salaryviolated the EstablishmentClause, the observance of legislativeprayer did not.5 The appellate court went even furtherand declared thatthe whole "prayerpractice" was unconstitutional. The case was then accepted for decision by the United States Supreme Court, by whichtime the concreteconcerns of Ernest Chambers and Robert Palmer had dwindled to littleor no moment.Chambers's lawsuit had 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 ascertains this constitutionalmeaning are of the utmost legal and politicalimportance. Ernest Chambers'slawsuit would prove to be the occa- sion for an unusuallyclear and dramaticdisplay of 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 thirdCalifornia Senator should one day present herselffor accreditation in Washington,D.C., no courtin the countrywould think twicebefore disapprovingof the application. From a phenomenologicalpoint of view,there would be no question of "interpreting"the constitutionallanguage, for its meaning and application would appear clear and obvious.7 The most famous expression of the experience of this clarityis by Justice Owen Roberts,who in 1936 wrote that the "judicial branch of the government has only one duty,-to lay the articleof the Constitutionwhich is involvedbeside the statutewhich is challenged and to decide whetherthe lattersquares withthe former."8In legal circles, this approach is sometimescharacterized as 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, for example, eitherthe meaningof the EstablishmentClause with respect to the issue of legislativeprayer is "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 between the clause and itsapplication.'0 Because judges must be able tojustify their decisions, they must also be able to justifythe means of interpretationthat theyemploy to reach those decisions, 14 REPRESENTATIONS particularlyif their choice affectsthe ultimate result or significanceof a case. Judges must be able to explain whythey have decided to interpretthe Constitu- tion through one set of inquiries ratherthan another. In legal (although not in philosophical or literary)parlance, judges require and must be able to articulate a "theory"of constitutionalinterpretation. Any such theoryof interpretation,however, must accommodate itselfto the role of judicial review withinAmerican democracy.When a court sets aside a statuteas unconstitutional,it in essence deems the statuteinvalid in the name of the Constitution.Courts have claimed the power to do thisbecause, in the famous words of John Marshall in Marburyv. Madison,the decision that established the institutionofjudicial review,"it is emphaticallythe provinceand dutyof thejudi- cial departmentto say what the law is.""l The implicitpremise of thisclaim is that the Constitutionis a formof "law,"just like the law whichcourts ordinarily inter- pret and apply. Fidelityto law is a preeminentvalue in a nation that,as Marshall put it in Marbury,prides itselfin being "a governmentof laws,and not of men."'2 But, as the force of Marshall's argument in Marburyalso required him to acknowledge, the Constitutionis somethingmore than ordinarylaw; it is "the fundamental and paramount law of the nation." The Constitutionis "funda- mental"because it is the vehiclethrough which "the people . .. establish,for their future government,such principlesas, in theiropinion, shall most conduce to theirown happiness."The Constitutionis therefore"the basis on whichthe whole American fabric has been erected."'3 The question arises, therefore,why it should be the provinceand dutyof the federaljudiciary to discernin that"Amer- ican fabric"the "principles"and "opinion" of "the people," when thatjudiciary is not elected by and hence structurallyresponsible to the people. Why shouldn't that task be allocated instead to the democraticallyelected branches of govern- ment,which are presumptivelyin closer contactwith the popular mind? This question, which is sometimestermed the "counter-majoritarian"diffi- culty,'4has proved durable enough to sustain the work of generations of con- stitutionalscholars. The question makes a powerfulpolitical point. Judicial de- terminationsof unconstitutionalitynullify the actions of democraticallyelected 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 asked the Court in 1857 afterthe Dred Scottdecision,'5 "so definitivelyto instruct the nation about the 'Americanfabric'?" II The United States Supreme Court voted 6 to 3 against Ernest Cham- bers. If one were simplyto view the Constitutionas ordinarylaw, this outcome Theoriesof Constitutional Interpretation 15 would have been somethingof a surprise.The relevantprecedents of the Court pointed unambiguously to the unconstitutionalityof the practice of legislative prayer.As JusticeWilliam J. Brennan pointed out in his dissent,it is "obvious that,if the Court were tojudge legislativeprayer through the unsentimentaleye of our settleddoctrine, it would have to strikeit down as a clear violationof the EstablishmentClause."''6 In ordinaryadjudication, courts followthe principleof staredecisis, which is to say that theyfollow the doctrinalrules laid down in controllingprecedents.'7 In American law, the principleconstitutes a fundamentalaspect of "the rule of law,"'8 for it 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.'9 In constitutionaladjudication, "adherence to precedent can contributeto the importantnotion that the law is impersonal in character, that the Court believes itselfto be followinga 'law whichbinds [it] as well as the litigants.'"20 The principle of staredecisis helps to ensure that our constitutional order retains the kind of stabilityand continuitythat are
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