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February 05, 2019

Is Constitutional Law, Law?

By Jaletta Long Smith

On October 13, 1932, Chief Justice Charles Evans Hughes addressed the crowd that gathered to watch the laying of the cornerstone for the building that would house the Supreme Court of the United States. “The republic endures and this is the symbol of its faith,” he said. Our nation has entrusted the Court with interpreting—and some might say protecting—our governing document, the United States Constitution, through our highest and lowest points in history. Indeed, constitutional interpretation is one of the most high-profile aspects of the Court’s docket, at least in terms of news cycles and public opinion at large. The Court’s power to interpret our Constitution is critical to keeping the faith in our governing system alive. And with an ever-increasing number of self-proclaimed “textualists” on the bench, our Court’s interpretation of the Constitution is increasingly constrained by text, history, and precedent. Or is it?

The final panel presentation at this year’s conference debated that very question. Is Constitutional law, law? Does the Court bind itself by text, history, and precedent? Or is the process of interpreting the Constitution one in which the Court’s Justices allow their own values and judgments to reign freely? The question remains despite the robust panel discussion between Judge Kevin Newsom of the United States Court of Appeals for the Eleventh Circuit, Presiding Justice David Nahmias of the Georgia Supreme Court, Professor Eric Segall from Georgia State College of Law, and Professor Ernest Young from Duke University School of Law. The panel was moderated by Laurie Daniel of Holland & Knight.

Professor Segall began the discussion with a brief overview of his position that when the Court decides constitutional law cases, it does not act as a court of law and the Justices do not act as judges because the Court gives minimal deference to precedent and prior law. Consequently, he contends that the Court’s decisions in constitutional law cases are binding but are not actually law. Professor Segall discussed the pre-Lochner and post-Lochner Court and posited that each era of the Court is marked by the Justices’ own principles instead of adherence to constitutional text. Supreme Court Justices, unlike judges on lower courts, do not feel bound or constrained by precedent because of the Court’s inherent power to overrule prior cases. For example, Professor Segall cited to Judge Richard A. Posner’s opinion in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), in which Judge Posner concluded that the Court’s interpretation of the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008), compelled the Seventh Circuit to reverse a lower court ruling even though Judge Posner may have disagreed with that outcome. According to Professor Segall, the indeterminacy of constitutional law results from the Court’s tendency to apply the values and principles agreed to by the majority of the Justices, which necessarily vary as the Court’s own makeup changes.

Professor Segall readily admitted that those on the Court, as well as those around it, perceive constitutional decisions as being decision of law. He maintained that ideology, not textual analysis or constitutional principles, motivates not only the opinions of the Court, but also which cases the Court decides to hear. After all, the Court has near complete control over its docket and picks cases in secret and in private. In this way, the Court decides which cases—and constitutional issues—merit its national platform and which do not. He repeated the old maxim from Justice Brennan that the most important rule of law is to “get to five.” Professor Segall summed up his opening remarks with his view that the Court’s constitutional law decisions are not based on history, text, or precedent, but rather on ideology.

Professor Young provided the initial counterpoints. While he agreed that the thesis was provocative, he disputed that the Court and members of the bar had been operating under a mass “self-delusion” that the Court’s constitutional law decisions were anything other than constitutional law. He presented four rebuttal points. First, he argued that “political” is not the antonym of “legal.” Disputes surrounding constitutional law and interpretation, in his view, are almost always implicitly political. Second, he argued that an empirical analysis of judicial behavior is nearly mathematically impossible because we lack a method to define and code the underlying reasons for the judges’ votes and decisions. Third, he argued that law is not perfectly logical. Unlike natural laws, our legal system is a human construct not capable of perfect logic. At the Supreme Court level, a legal dispute in which one side has no argument meriting consideration and examination is rare. Therefore, legal questions often do not lend themselves to traditional notions of an absolute right versus an absolute wrong outcome. Fourth, Professor Young acknowledged that the Court and legal system must examine indeterminacy in decision-making processes because that bears on legitimacy. But he cautioned that those who question the Court’s constitutional decisions must avoid overclaiming without evidence, because laypeople are unlikely to understand whether a decision is based on ideology or precedent.

Presiding Justice Nahmias then offered a few observations. He noted that the Court’s textualist and originalist Justices are easy targets for critics simply because they subscribe to a defined philosophy. Other Justices can only be critiqued based on their reasoning process since they have not announced any interpretive philosophy by which their opinions can be measured. He offered a personal aside that even Justice Scalia struggled against the bind of precedents that he might not agree with personally. Justice Nahmias referred to McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010), as an example of when Justice Scalia endorsed the “straightforward application of settled doctrine,” despite his misgivings about “Substantive Due Process as an original matter.” Id. at 791 (Scalia, J., concurring). Perhaps if “value judgments” are all it takes to be a judge, then maybe philosophers, not lawyers, should take the bench.

At this point, Judge Newsom offered some questions to the panelists. First, he inquired about the justification for judicial review presented in Marbury v. Madison, 5 U.S. 137 (1803). Marbury, of course, justified judicial review on the basis that the Constitution is superior to any ordinary legislative act and is itself the supreme law of the land. If constitutional interpretation is not law, he mused, what is the basis for judicial review? Professor Segall took the path of distinguishing Marbury rather than overruling it and endorsed a “clear error” standard for striking down laws as unconstitutional. He opined that judicial review of legislative acts should be undertaken with modesty, humility, and extreme deference to the legislative body. On this point the two sides seemed to find some common ground. Justice Nahmias agreed that restraint and deference are appropriate when a court is urged to strike a law as unconstitutional. In his view, if the answer is not clear from the Constitution’s text, then courts should “let it be” and leave the decision to the legislative branch. Professor Young agreed that deference is appropriate but pushed back on the idea that clear error would be an appropriate standard.  He puzzled about how such a standard would work if the Court had to simply defer to various interpretations without determining the underlying constitutional principles.

Judge Newsom’s next asked whether originalism is just too hard to get right, i.e., can we rely on an interpretive system that requires judges and lawyers to reach into history and act as semi-professional historians. The textualist camp assured the crowd that the Justices were up for the job, pointing out that judges often reach out and borrow from areas outside the law to decide substantive points in non-constitutional cases. Professor Segall countered that current originalists have disowned history as the basis for their interpretations and abandoned the guideposts established by 1980s-era originalists.

Perhaps in a nod to both his resurgent popularity and his indelible fingerprints on the interpretation of our Constitution, both sides selected quotes from Alexander Hamilton as their seconds in this duel. According to Professor Segall, Hamilton cautioned that the judge’s veto is a powerful tool and reassured early Americans that judges would only exercise such power in the face of an irreconcilable difference between the Constitution and the law being evaluated. Professor Young had his own Hamilton quote at the ready. He contended that Hamilton recognized the difference between judgment and will and proposed that judges would pass judgment on rules that they do not create rather than exercising their own will. 

The panel then opened the floor for questions and Hamilton’s Federalist Papers, which he authored along with John Jay and James Madison, featured in the first question. Is it consistent with originalism to examine that work when interpreting the Constitution? Yes, all sides seemed to agree that The Federalist Papers can help illuminate meaning when interpreting the Constitution. But what should judges and attorneys use if no historical or textual guidance exists to define a jurisprudential doctrine? Professor Young encouraged the audience to examine whether courts have coalesced around one interpretation of the doctrine. Professor Segall, on the other hand, said the Court can interpret doctrines independently from the constitutional text. For example, the Court’s sovereign immunity jurisprudence veers far from the text of the Eleventh Amendment. Justice Nahmias contended that if the text is truly exhausted and no clear answer can be gleaned, then the issue may best be left to the legislative or executive branch.

Finally, what are we to do with built-in ambiguity? Justice Nahmias stridently opposed efforts by courts to “bail out” legislatures that passed laws but did not decide the issues inherently presented within those laws. He cautioned against using constitutional interpretation to decrease the number of topics open to public discourse because such decisions prematurely prevent topics from being developed by popular opinion. Professor Segall closed with his steadfast thought that originalism and textualism must give deference to the laws passed.

In sum, this lively discussion may not have changed the views of any committed textualist, originalist, legal realist, or living constitutionalist in the audience. But it did reaffirm that the debate over how to interpret our Constitution is ongoing, and that it must continue to preserve faith in the Court’s legitimacy for future generations.

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Jaletta Long Smith

Jaletta Long Smith is an associate at Andersen, Tate & Carr in Duluth, Georgia, where she practices appellate and civil litigation. Prior to private practice, Jaletta served a law clerk for the Honorable Britt C. Grant, formerly of the Georgia Supreme Court, the Honorable Kristine G. Baker of the United States District Court for the Eastern District of Arkansas, and Robert L. Brown (retired) of the Arkansas Supreme Court.