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Representations 30 (Spring 1990)
In 1979 Ernest
Chambers was a barber who had for nine years represented a predominantly black
district of Omaha in the Nebraska Unicameral Legislature. He had been brought
up in “a religious strait-jacket” in the fundamentalist Church of God and
Christ, but as he had grown older he had come to renounce Christianity and all
belief in God. Consequently he was uncomfortable when the chaplain hired by the
legislature opened each session with prayer. In fact he felt compelled to leave
the legislative chamber, so that he and the chaplain were “almost in a race to
see whether” the chaplain could “get to the front before” Chambers could “get
out the back door.”
The chaplain of the
Nebraska Legislature during that time was Robert E. Palmer, a Presbyterian
clergyman who had ministered to the legislators since 1965. His prayers were
short, almost perfunctory. He strove to make them nonsectarian, to reflect
“just civil religion in America,” which he understood to consist of “the
Judeo-Christian tradition,” the “kind of religious expressions that are common
to the vast, overwhelming majority of most all Americans.” He viewed the
purpose of his prayers to be the provision of “an opportunity for Senators to
be drawn closer to their understanding of God as they understand God, in order
that the divine wisdom might be theirs as they conduct their business for the
day.” And so he would, for example, pray “in the name of Jesus—our Friend, our Saviour,
our Example, our Guide,” and he would “ask” that the Senators come to realize
that “they are part of the team working together to win the game for the
benefit of the people of this state.”
Chambers attempted
to convince his colleagues to end the practice of legislative prayer. When they
refused, he took the characteristically American step of filing suit in federal
court. His claim was elegantly simple: the payment of a state salary to the
minister of a single Christian denomination for fourteen years for the purpose
of offering official prayers to the state legislature was a violation of the
Establishment Clause of the First Amendment to the United States Constitution.
That clause provides: “Congress shall make no law respecting an establishment of
religion.”
The trial court
held that while the payment of the chaplain’s salary violated the Establishment
Clause, the observance of legislative prayer did not. The appellate court went
even further and declared that the whole “prayer practice” was unconstitutional.
The case was then accepted for decision by the United States Supreme Court, by
which time the concrete concerns of Ernest Chambers and Robert Palmer had
dwindled to little or no moment. Chambers’s lawsuit had become merely a medium
through which the Court could ponder the legal meaning for the entire nation of
the Establishment Clause. The methods by which the Court ascertains this
constitutional meaning are of the utmost legal and political importance. Ernest
Chambers’s lawsuit would prove to be the occasion for an unusually clear and
dramatic display of these methods.
. . .
The outcome of
Ernest Chambers’s lawsuit thus appears as a triangular structure, in which
three distinct theories of interpretation compete for control of the
Constitution. In one corner is a form of interpretation that strives to
implement the Constitution through the articulation of explicit doctrinal
rules. In a second corner is a form of interpretation that attempts to construe
the Constitution to reflect the original intent of its Framers. In yet a third
corner is a form of interpretation that reads the Constitution in a manner
designed to express the deepest contemporary purposes of the people. Each of
these three theories is immediately recognizable and familiar to those who
practice constitutional adjudication.
III
The purpose of
constitutional adjudication is to assess the constitutional validity of state
actions, like the hiring of legislative chaplains. But courts can achieve this
purpose only to the extent they have the authority to evaluate, in the name of
the Constitution, the validity of otherwise perfectly legal state actions.
Every act of constitutional interpretation invokes and depends upon this
authority, and for this reason “constitutional interpretation is essentially
about the sources of authority in American political life.” What in fact
distinguishes the three theories of interpretation displayed in Chambers—theories
that I shall respectively call “doctrinal,” “historical,” and “responsive”
interpretation—is that each appeals to a different conception of constitutional
authority.
The authority
of law. There is, first, the authority of the Constitution as law. The
Constitution controls state actions because the Constitution is the highest
law, above all merely quotidian state activity. The concept of the
“constitution as hard law, law written in virtually capital letters (LAW), law
as meaning reliable law,” has been termed “by far the most important idea of
the Constitution.” Because “courts are the mere instruments of the law,” they
are peculiarly fitted to interpret a Constitution whose authority lies in its
character as law. It is therefore no accident that in Marbury Marshall
appealed precisely to this image of constitutional authority in establishing the
institution of judicial review.
If the
Constitution predominates because it is law, its interpretation must be
constrained by the values of the rule of law, which means that courts must
construe it through a process of reasoning that is replicable, that remains
fairly stable, and that is consistently applied. In American adjudication the
principle of stare decisis has been an essential component of the rule
of law. The principle is of particular importance on those occasions when
constitutional adjudication involves vague textual referents (like “equal
protection of the laws,” or “due process of law”), with regard to which there
is “only limited evidence of exactly how the Framers intended the [text] to
apply.” On these occasions the principle of stare decisis holds courts
to a consistent and stable interpretation of the Constitution.
. . .
The authority
of consent. If doctrinal interpretation rests on the equation of
constitutional authority with law, what I shall call “historical
interpretation” rests instead on the equation of constitutional authority with
consent. The story is simple and familiar. The Framers of the Constitution
proposed a compact to limit the power of government; the people signified their
agreement to that compact by their ratification of the Constitution, and that
agreement is what gives the Constitution its authority. The interpretation of
the Constitution should therefore be designed to give effect to the terms of
that original act of agreement.
The story behind
historical interpretation has enormous resonance in a liberal society like our
own. It conceives of the Constitution as binding in the same way that a promise
is binding, as a single voluntary act of willful self-regulation. In
interpreting such a Constitution courts can portray themselves as merely the
passive enforcers of the democratic will that “ordained and established” the
Constitution. Thus, as former Attorney General Edwin Meese III could observe,
“A Jurisprudence of Original Intention . . . reflects a deeply rooted commitment
to the idea of democracy. The Constitution represents the consent of the
governed to the structures and powers of the government. The Constitution is
the fundamental will of the people; that is why it is the fundamental law.”
Different variants
of historical interpretation emphasize different forms of evidence as probative
of that original exercise of “fundamental will.” Thus for some commentators the
constitutional “text” is a privileged form of evidence, because “the text is
the intention of the authors or of the framers”; whereas for others the
“relevant inquiry must focus on the public understanding of the language
when the Constitution was developed.” By far the most common form of historical
interpretation, and the one used by Chief Justice Burger in Chambers,
regards the intentions of the Framers as the best evidence of the agreement
represented by the Constitution.
. . .
The authority
of ethos. The classic statement of responsive interpretation is by Oliver
Wendell Holmes:
When we are
dealing with words that are also a constituent act, like the Constitution of
the United States, we must realize that they have called into life a being the
development of which could not have been foreseen completely by the most gifted
of its begetters. It was enough for them to realize or to hope that they had
created an organism; it has taken a century and has cost their successors much
sweat and blood to prove that they created a nation. The case before us must be
considered in the light of our whole experience and not merely of what was said
a hundred years ago.
For Holmes the authority of the
Constitution is not exhausted in a single creative act of consent, but
continues to inhere in the national “being” that the Constitution has “called
into life.” Hence the nature of that authority can be captured neither by rules
laid down in judicial precedents, nor by notions of original intention. The
authority must rather be conceived as flowing from the “whole experience” of
nationhood. That experience legitimately claims our allegiance because we are
necessarily included within it, and hence responsible both for what it has been
and what it might become. What is authoritative is thus neither more nor less
than our common commitment to the flourishing of the mutual enterprise of
nationhood.
The radical and
paradoxical implication of this perspective is that the Constitution explicitly
loses its character as a specific document or a discrete text. It becomes
instead, as Karl Llewellyn bluntly put it, a “going Constitution,” a “working
Constitution” which has a content that “is in good part utterly
extra-Documentary,” and which represents the “fundamental framework” of
“the governmental machine.” In this way the Constitution is transformed into
what Kant might call the “regulative” idea of the enterprise of constitutional
adjudication, the “imaginary focus from which the concepts” of that enterprise
“seem to proceed, even though there is nothing knowable at that focus.”
The Constitution
as a regulative idea defines the telos and shape of constitutional
interpretation: it demands a continual effort to articulate the authority of
our “fundamental nature as a people” and hence concomitantly to summon “us to
our powers as co-founders and to our responsibilities,” in the full knowledge
that “how we are able to constitute ourselves is profoundly tied to how we are
already constituted by our own distinctive history.” In this sense responsive
interpretation requires judges to view the Constitution as a form of what
Philippe Nonet and Philip Selznick have called “responsive law,” law that
submits to “the sovereignty of purpose” by functioning “as a facilitator of
response to social needs and aspirations.”
. . .
V
The fact that
identical judges use different theories of constitutional interpretation in
different cases is often used as evidence of the unprincipled nature of
constitutional law. And, indeed, if the choice of an interpretive theory
depended on the nature of the Constitution, and if that nature were
antecedently and externally given, it would be difficult to condone the ways in
which judges actually use interpretive theories. But if, as I have argued,
constitutional interpretation depends instead upon a relational concept of
constitutional authority, judges can legitimately select a specific
interpretive theory in light of the circumstances of a particular case.
Thus a court can
justifiably use historical interpretation with respect to an issue in a case if
it believes that the national ethos supports an identification with a past act
of consent relevant to that issue. But it can justifiably use responsive
interpretation if it can discern with respect to that issue the presence of a
national ethos that in a pertinent way historically embodies the essential
content and spirit of the Constitution, and that precludes identification with
any past act of consent. Hence the choice between historical and responsive
interpretation can turn on an appraisal of the national ethos.
The selection of
doctrinal interpretation entails a different kind of appraisal, one that
requires a court to determine whether the values of the rule of law outweigh
the inadequacy of controlling precedents. An important reason why precedents
may be inadequate is that they are inconsistent with the interpretation of the
Constitution required by the national ethos, either in the form of historical
or responsive interpretation. The striking of this balance between the rule of
law and the national ethos is both necessary and legitimate.
Thus the selection
of a specific theory of constitutional interpretation for a particular case can
be justified in the same way that any legal decision can be justified.
Justification flows not from logical compulsion but rather from the principled
application of pertinent considerations. Constitutional adjudication, like all
law, is in this way revealed as balanced on the human faculty of judgment. As
in all human endeavor, pertinent considerations may be more or less compelling,
and consequently the ability to exercise judgment more or less sustained.
Nevertheless, the
pattern of judgment in constitutional law can reveal a good deal about the
nature of fundamental authority in our democratic state. It suggests, for
example, that visions of the national ethos, and hence of a “humanly meaningful
authority,” are at the core of our practice of constitutional adjudication.
This is encouraging news to set against the view of those who, like Jürgen
Habermas and others, perceive the tidal current of this century as flowing
toward “undeviating organization,” with its concomitant conditions of
bureaucracy, alienation, deracination, and instrumental rationality. But it is
also cause for concern if, as appears increasingly likely to be the case for
many of us, the vision of national ethos authoritatively enacted by the Supreme
Court is contrary to our own. Our consolation in such circumstances is the
strength that Claude Lefort identifies with modern democracy: the ever-present
possibility that our protests will create a reconstituted political perspective
that will in turn alter the character of future judicial appointments.
But that
possibility, of course, simply pulls Ernest Chambers round full circle, back to
his original efforts to convince his fellow legislators of the deep
impertinence of legislative prayer.
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