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. …