An endless stream of books and articles is written, and symposia-such as this one--are held, on the ever fascinating and intriguing subject of constitutional interpretation. Obviously, it is a matter of great importance. If the Supreme Court would only adopt the correct method of constitutional interpretation, the Court would get its constitutional decisions right. Because we have arrived at a system of government in which the Court's constitutional decisions determine the most basic issues of domestic social policy for the nation as a whole, there could hardly be, it would follow, an issue of greater consequence.
The dispute over methods of constitutional interpretation, however, is based almost entirely on a fiction, because Supreme Court rulings of unconstitutionality rarely, if ever, turn on an issue of interpretation. The fact is that the Constitution has very little to do with constitutional law. This was true of the Court's first ruling of unconstitutionality in Marbury v. Madison (1) in 1803, of its historically most significant, Dred Scott v. Sandford (2) in 1856, and of the perhaps most significant of its more recent, Planned Parenthood of Southeastern Pennsylvania v. Casey (3) in 1992.
There could hardly be a more purely or egregiously political decision than Marbury. (4) Chief Justice John Marshall sat on a case in which he was personally involved, and berated his political opponent President Jefferson, by finding a violation of a plaintiff's rights in a case in which the Court lacked jurisdiction. He then seized the occasion, probably concocted, to establish judicial review by fabricating a statutory provision that did not exist (5) to find that it violated a constitutional prohibition that also did not exist. (6) In Marbury, Chief Justice Marshall established not only judicial review, the power of judges to invalidate policy choices made by other government officials, (7) but also that ordinary standards of integrity, truth, and logic do not apply to Supreme Court decisionmaking. Judicial review was born in sin and has rarely risen above the circumstances of its birth. (8)
Judicial activism in constitutional law can most usefully be defined as a court declaring unconstitutional a policy choice that the Constitution does not clearly prohibit (9)--"clearly" because in a democracy the view of elected legislators should prevail over the view of unelected judges in cases of doubt. (10) By this definition all or nearly all Supreme Court rulings of unconstitutionality are activist. Belief in the Court's insistence that such rulings are based on an interpretation of the Constitution can be likened to the belief in the fable of the Emperor's new clothes. (11) Both beliefs are based on a need strong enough to overcome reality: the need to believe or be seen to believe a quasi-official opinion.
The Emperor's tailors were clever enough to convince him that they had made him a beautiful, though invisible, new suit of clothes. (12) Unable to believe, or unwilling to admit, that their Emperor had been fooled, his loyal subjects also admired the clothes until an innocent child, heedless of politics and propriety, pointed out that the Emperor was naked. (13) The Court is analgous to the Emperor's tailors in regard to its rulings of unconstitutionality. Although such rulings are obviously pure policy judgments, the Court wraps them in imaginary constitutional prohibitions, which professors of constitutional law, like the Emperor's loyal subjects, then claim to see, in the confident expectation that few others will be bold or observant enough to point out that the alleged prohibitions are entirely imaginary.
The only significant difference between the Emperor's tailors and the Court is that once the child pointed out the nonexistence of the clothes, everyone agreed that the Emperor was indeed naked. Pointing out that the Court's rulings of unconstitutionality are baseless and simply expressions of the policy preferences of a majority of the Justices-as all candid observers have done from the beginning (14)--seems not to make the slightest difference. …