Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies

By Tushnet, Mark V. | Duke Law Journal, March 2001 | Go to article overview

Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies


Tushnet, Mark V., Duke Law Journal


Students of constitutional law regularly evaluate the Supreme Court's performance in interpreting the Constitution. Evaluations of Congress's performance of this same task are much less common. When we evaluate the Court's performance, our comments are frequently critical. That is, we do not believe that the Court's practice of interpretation of the Constitution is flawless. Yet, comments on Congress's performance frequently are based on the assumption that flaws in that institution's performance demonstrate its general inability to do a decent job of interpreting the Constitution.

We also have developed a number of justifications for judicial review. Assertions that the Court has some institutional superiority in deciding constitutional questions are common in those justifications. Those assertions might support a general skepticism about Congress's ability to interpret the Constitution well. Ordinarily, however, the claims about institutional superiority deal solely with structural characteristics of the Court and legislatures. So, for example, we note that electoral pressures may unduly influence members of Congress,(1) even if they are sincerely interested in interpreting the Constitution correctly.(2) In contrast, we point out, judges do not face such pressures. Further, members of Congress operate under severe time constraints as the nation's urgent business calls on them for decision. In the rush to determine national policy, conscientious deliberation over constitutional matters will be rare.(3)

These observations about the comparative advantages of institutional structures are often correct. Yet incentives and institutional characteristics only conduce to behavior; they do not determine it. Identifying the actual effects of incentives and structure on behavior is fundamentally an empirical question. And yet, constitutional scholars rarely examine Congress's performance when it takes on the task of interpreting the Constitution.

In part, our neglect of the empirical dimension of the comparative inquiry results from our specialized training. Examining the actual operation of Congress would require us to consult sources with which we are less familiar than we are with the United States Reports: congressional hearings, floor debates, negotiations over legislative proposals, and more. In part, too, figuring out what evidence is relevant to a determination of the right answers to these empirical questions is quite difficult.

I begin this Essay by identifying some problems with conducting an empirical inquiry into Congress's performance in constitutional matters. I argue that there is actually only a small set of issues for which we have a reasonably clean record to evaluate. With the problems I have identified in the background, I then examine some aspects of Congress's performance in the impeachment of President William J. Clinton and, more briefly, some aspects of its response to a presidential military initiative taken without formal prior congressional endorsement. I conclude that Congress's performance in the impeachment, however flawed, was reasonably good, and that its performance in the war-powers context may have larger flaws but be reasonably good even so.(4) Relative to the Supreme Court's imperfect performance, the defects of Congress's performance may then seem less consequential, and the case for judicial review based on comparative demonstrated institutional competence may seem weaker.

I. HOW TO EVALUATE CONGRESS'S PERFORMANCE IN INTERPRETING THE CONSTITUTION

Discussions of Congress's performance in interpreting the Constitution can easily get off track unless we take great care to ensure that we examine only cases offering a fair chance for sensible evaluation. This part offers some criteria for selecting such cases.

A. Examine Institutional Performance, Not Individual Behavior

It is trivially easy to compile a list of the constitutionally irresponsible or thoughtless proposals that members of Congress make. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.