Academic journal article Constitutional Commentary

Judicial Interpretive Finality and the Constitutional Text

Academic journal article Constitutional Commentary

Judicial Interpretive Finality and the Constitutional Text

Article excerpt

Elephants leave traces when they pass by. (1) That is true about the Constitution as it is elsewhere. For example, once the Federal Convention had made the basic decision to propose a national government of three independent branches, it implemented that decision unmistakably. Much of the Constitution is concerned with the selection, tenure, and powers of the separated legislature, executive, and judiciary. One way to tell whether the Constitution adopts a principle is thus to look for its traces, and one way to do that is to ask: If the framers had planned to include the principle, or had assumed that other decisions they had made entailed the principle, where would it manifest itself?

The principle of Cooper v. Aaron, (2) according to which the Supreme Court's opinion in a case binds all other legal actors, whether parties or not, is a good-sized elephant. That fact suggests one way to determine whether it is a sound interpretation: Ask how the framers would have worked it into their system, and what they would have had to do in order to resolve the fundamental questions that came with including or assuming it. That question can be answered by taking guidance from similar principles that are clearly manifested, seeing how those manifestations work and in particular how the Constitution deals with the issues that must be resolved if the principle is present.

A careful examination of the text contradicts the hypothesis that the drafters meant to include, or assumed that their other decisions entailed, the Cooper principle of judicial interpretive finality. (3) The elephant left no traces.

This focus on the particular supplies the answer to a natural question: What is the justification for one more article on judicial supremacy? The answer is that so far the debate on this subject has mainly focused on large principles rather than particular text and the absence thereof. Cooper itself relies on the fairly abstract principle that the courts have a special function when it comes to interpreting the law. (4) Two important defenders of Cooper, Schauer and Alexander, rely on the even more abstract principle that the rule of law is justified by the coordination function law plays. (5) A prominent critic, Michael Stokes Paulsen, relies on the principle that the branches of government are independent of one another, another high-level concept. (6) In an important recent contribution, Edward Hartnett argues against judicial finality by pointing to a range of practices that assume that the central function of courts is to resolve concrete disputes, not to decide abstract propositions of law. (7)

Indeed, to some extent the debate as it has proceeded so far makes my point. That debate has not been about particular provisions because there are no provisions for it to be about. In one place after another, where Cooper suggests that the Constitution should say something, it is silent.

Most fundamental of all is the absence of any equivalent to Article VI for judicial opinions. (8) The supremacy of federal law, and the oath-bound duty of state officers to recognize it, binds together the legal hierarchy established by the Constitution. Judicial interpretive finality attributes a functionally similar supremacy to judicial opinions, making them conclusive gloss on the law they interpret, including especially the law that is itself made supreme by Article VI. According to the judicial finality thesis, then, opinions have a very important place in the legal hierarchy, the creation of which was absolutely fundamental to the Constitution. While two centuries of experience may have dulled awareness of the radical nature of Article VI, it remains a remarkable measure, reaching into otherwise independent sovereignties and changing their rules on the most basic question of all. Moreover, the language of Article VI shows that the Federal Convention paid close attention to the precise contours of the supremacy rule it drafted; pre-existing treaties trump state law, but other actions of the United States under the Articles of Confederation do not. …

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