Construing the Text of Constitutions and Statutes

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The approach to constitutional and statutory interpretation that I advance is understood as originalist or textualist interpretation. The belief of an originalist or textualist is best described by justice Joseph Story, a 9 19th Century Associate justice of the United States Supreme Court and professor of law at Harvard. justice Story said, "The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms, and the intentions of the parties."1 This approach was well understood at the time our country was founded. James Madison described its importance well when he said, "If the sense in which the Constitution was accepted and ratified by the nation be not the guide in expounding it, there can be no security for a faithful exercise of its powers." Thomas Jefferson also made this point when he said, "Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction."3 Or, as President George Washington said in his Farewell Address:

If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation: for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.4

And finally, to cite to the U.S. Supreme Court's most famous case, Marbury v. Madison, by its most famous justice, Chief justice John Marshall, once constitutional limits are prescribed, they may not "be passed at pleasure."5 It is because constitutions are bulwarks against oppression that, in Marshall's words, "written constitutions have been regarded with so much reverence."6

What is at issue is the scope of judicial review; that is, the power of the courts to invalidate the acts of the legislature because they run afoul of the higher rules established by the Constitution. This is a controversial power in a democracy because the legislature speaks for the people, and when judges declare a legislative act unconstitutional, and thus void, this creates tensions with the fundamental concept of a majoritarian government.

This point needs to be appreciated. all judicially -enforced constitutionalism prevents the majority from getting its way on a particular issue. Moreover, while the Constitution does not expressly give the courts the power to review legislation to see if it conforms to the Constitution, I know of no writings by the founding fathers that indicate that our Constitution does not require the courts to exercise such a power. For example, Alexander Hamilton, writing in Federalist No. 78, clearly believed in judicially -enforced constitutionalism, stating:

If it be said that the legislative body are themselves the constitutional judges of their own powers, . . . this cannot be the natural presumption, where it is not to be recollected from any particular provisions in the Constitution .... It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.7

judicial review, in essence then, constrains the current populace by the rules established by ratifiers that have long passed from the scene. To constrain the living by rules established by the dead of another era, possessed of different enthusiasms and dispositions, seems strange to contemporary Americans, with their casual understanding of the limits on self-government. Accordingly, this notion requires justification before one can feel comfortable with it.

The justification is that this is why we have constitutions. …

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