Legislative Constitutional Interpretation
Katyal, Neal Kumar, Duke Law Journal
This is an Essay about "the how" of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and should be, quite different from constitutional interpretation by courts. In so doing, I combine insights from political scientists about the ways Congress operates with insights from constitutionalists who fear open-ended interpretation.
Congressional interpretation is a recurring problem in constitutional law. In the last four years, momentous events have forced us to rethink how Congress should approach the task. In 1997, the Supreme Court struck down the Religious Freedom Restoration Act (RFRA) on the ground that Congress could not expand constitutional rights through ordinary legislation.(1) The next year, Congress was required to make a judgment about the meaning of the phrase "high Crimes and Misdemeanors" in President Clinton's impeachment trial.(2) Last year, the Supreme Court declared unconstitutional a statute that excused law enforcement officials from providing the four warnings specified in Miranda v. Arizona.(3) A separate decision announced the belief that only the Court has the power to define the meaning of the Fourteenth Amendment.(4) More recently, in the wake of the 2000 presidential election, a wide debate ensued about the contours of the right to vote, Congress's role in counting electoral votes, and the meanings of the Twelfth and Fourteenth Amendments.(5) Each of these events challenges us to consider whether Congress should use the techniques of constitutional interpretation that are so familiar to courts.
My conclusion is that because of its unique institutional features, Congress should interpret the text in ways the courts should not. For example, I suggest that Congress should take popular values and beliefs into account when formulating constitutional principles. I also suggest that the virtues and vices of adhering to precedent are somewhat different for legislative precedent than for judicial stare decisis. The structural variances between the courts and Congress can be analyzed profitably to develop a theory of interbranch interpretation that takes advantage of the comparative strengths of each branch. The institutional differences between the branches can be a source of richness, rather than a constitutional weakness.
The analysis proceeds in three parts. Part I analyzes the Senate's advice and consent power. I suggest that the Senate should, in some instances, use its ability to take the pulse of the nation to inform its constitutional judgments, and that the Senate should seek to reify these pronouncements in Supreme Court confirmation hearings. I argue that the Senate should use confirmation hearings to instruct not only nominees, but currently sitting Justices as well, about ways to approach constitutional issues. The Senate can criticize decisions, or, more interestingly, bless decisions that are not firmly grounded in the text, history, or structure of the Constitution. As part of the analysis, I propose a new way of thinking about Bruce Ackerman's dualist constitution. In Part II, I consider Congress's ability to change constitutional pronouncements through ordinary legislation. This part develops an argument explaining why Congress can enact laws that call into question certain Supreme Court decisions. The Court has recently been hostile to Congress as a constitutional interpreter, particularly in its recent Section 5 jurisprudence; I suggest that these cases should be reconsidered. …