My thanks to the folks at Law & Liberty for inviting me to respond to Josh Hawley’s provocative essay on the need for the Supreme Court of the United States to defer to reasonable congressional interpretations of the Constitution. Professor Hawley nicely tees up an issue of inter-branch cooperation in the proper enforcement of the federal Constitution. The subject is as old as Marbury v. Madison (older, really), and one deserving of continued debate in a system designed to maximize the interest of each branch in preserving and expanding their power and influence. Inter-branch struggle was baked into the Constitution by delegating separate powers and providing a system of checks and balances: the former creates incentives for power aggregation and the latter provides mechanisms of resistance. The issue is whether Prof. Hawley has identified a true instance of unjustified aggregation and, if so, whether the cure is better than the disease.

We could, for example, rid ourselves of judicial review altogether and establish a European-style parliamentary system in which the judiciary always follows the clear directives of elected majorities. This would accomplish what Professor Hawley identifies as key political values: the need not to“siphon authority away from the political branches,” not to “stifle public participation in constitutional politics,” and not to “encourage political irresponsibility.”[1] Indeed, Prof. Hawley flirts with the idea of a more parliamentary type system when he favorably quotes Jefferson’s belief that constitutional disputes are properly resolved by the political process. This would certainly be the case under a European system. But this would just as certainly constitute a different political system than the one established under the American Constitution with its uniquely divided powers between the three branches of national government, and between the central and local (state) governments.

The distinction in this case is important. Although Prof. Hawley makes a number of history-based arguments, it remains unclear to me whether he is arguing for a restoration of an originally intended (or “expected”) balance of constitutional powers, or whether he is advancing a set of extra-constitutional political values that he believes ought to guide the Court in those cases where the meaning of the text does not sufficiently resolve the dispute. Clearly, Prof. Hawley is right to champion values like “maintaining the authority of the political branches,” but the values Hawley emphasizes are only a handful out of a lengthy list of values derivable from the text and history of the Constitution, and only a drop in an ocean of values derivable from various theories of “just” government. Libertarians would add (and emphasize) the value of maximizing individual liberty and federalists would add the value of local self-government. Hawley must explain why his identified values are the ones that courts must emphasize in cases of textual under-determinacy, and not others.

Some aspects of his essay suggest that Hawley believes his approach reflects the original intentions of the framers of the Fourteenth Amendment. But arguments from “original intentions” and “original expectations” are deeply controversial and generally rejected even by those theorists who believe courts should follow the original meaning of the Constitution. Hawley’s “original intentions” argument is especially problematic since he apparently believes that the actions of the post-14th Amendment Congress somehow illuminate what must have been the original intentions of the Congress that actually drafted the Amendment (the Thirty-Ninth). In fact, there is good reason to think the members of these two congresses had very different ideas and intentions, both individually and in the aggregate. The Congress that shaped the Fourteenth Amendment was a far more moderate group (on average) than the post-Fourteenth Amendment Congress who proposed the Fifteenth Amendment, the Reconstructions Acts, and the Enforcement (KKK) Act. The Thirty-Ninth Congress rejected radical Republican efforts to grant Congress broad power to define and enforce civil rights in the states (see the rejection of the first draft of the Fourteenth Amendment mentioned in Hawley’s opening paragraph). In other words, if we follow the approach of “original intent,” it seems that the Court in Boerne was right to follow the lead of the Thirty-Ninth Congress and reject Congress’s attempt to arrogate to itself the power to define and enforce constitutional rights.

Among those scholars who advocate originalism-based approaches to constitutional interpretation, most follow the approach known as “original meaning” originalism. This approach looks not to the original intentions of the framers, but to the original meaning of the text. And in this case, the text poses something of a problem for Prof. Hawley’s theory. Although Hawley repeatedly claims that the Constitution grants Congress the power to interpret the Constitution,[2] there is no “interpretation power” among the delegated powers of Congress. The necessary and proper clause grants Congress power to make laws “necessary and proper for carrying into execution the foregoing powers.” Similarly, Section Five of the Fourteenth Amendment grants Congress “power to enforce, by appropriate legislation the provisions of this article.” These are powers to “execute” or “enforce” a power or right. The text says nothing at all about Congress having the power to interpret or define the content of that power or right.

Prof. Hawley would reply that the interpretive power is implied” and I would agree with him. But the power of judicial interpretation also is implied in the grant of judicial power to hear cases and controversies.[3] Neither branch is given textual primacy in the matter of constitutional interpretation (a point Hawley concedes). Hawley seems to think that co-equal interpretive power somehow includes a duty of judicial deference. On the contrary, both Congress and the Courts have an implied duty to interpret, and act on their best interpretation of, the Constitution. If there is some reason why the Court should not enforce their own reasonable and good faith understanding of the Constitution, and should instead defer to Congress’s understanding of the same, that reason must be derived from external political theory and not from the text of the Constitution itself.

Prof. Hawley tries to avoid the textual problem by claiming his approach applies only in situations where the text of the Constitution does not resolve the matter. Where text is “indeterminate,” he argues, courts should defer to a reasonable and good faith congressional interpretation. This is a default rule and, once again, it requires a normative theory for its justification. In the case of Section 5, the issue would be whether the text grants Congress the power to do X. According to Hawley, in cases where it is not clear that the Constitution grants Congress the power to do X, the Court should allow the exercise of such power if there is a reasonable good faith argument that such power exists. The Court should defer even if every member of the Supreme Court believes that the best reading of the text suggests that the People granted Congress no such power when they adopted Section 5.[4] Such an approach does maximize the values of political majoritarianism, but it seems very hard to square with a Constitution based on the theory of popular sovereignty.

Unlike parliamentary systems that operate on the idea that the people of the country are fully represented in the legislative assembly, the American Constitution is based on the idea that “We the People” are sovereign and exist wholly apart from our institutions of government. Those institutions may exercise only those powers delegated to them by way of a written and enforceable constitution. When the courts invalidate legislation because it either conflicts with or is not authorized by the Constitution, courts are not acting against the will of the people. Instead, they are enforcing the constitutionally enshrined will of the people against the unauthorized actions of mere transient political majorities. What Justice Robert Jackson wrote in regard to the Bill of Rights is equally true for every clause in the people’s Constitution:

The very purpose of a [Constitution] was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

Prof. Hawley, of course, specifically addresses congressional interpretation and enforcement of Section 5. This might seem distinguishable from judicial enforcement of the Bill of Rights since Congress would claim to be enforcing constitutional liberties, not acting against them. But constitutional rights come in many forms: there are individual rights which neither federal nor state governments may abridge, and there are collective rights which are reserved to the people in the states unless delegated away and placed under the authority of the federal government. The Fourteenth Amendment did not change this basic structural fact about non-delegated powers and rights. What Prof. Hawley has proposed is that courts should allow Congress to exercise powers that, under the best (if not the only reasonable) interpretation of the text, the People did not grant and therefore left under the control of the people in the several states.

This cannot be correct. The fundamental constitutional principle of popular sovereignty demands that every branch of government conform its actions to what it identifies as the best rendering of the People’s instructions. Anything less might be a reasonable theory of government, but it is not the theory of the American Constitution.

[1] I understand this last value to involve removing incentives to “pass the constitutional buck” to the Court.

[2] According to Hawley, “[c]onstitutional interpretation is a task the Constitution empowers Congress to perform.”

[3] All members of government, of course, take an oath to uphold the Constitution, thus implying all must seek to conform their actions to their understanding of the Constitution.

[4] “If [Congress’s reading is reasonable], the Court would defer to Congress’s interpretation, even if it did not regard that interpretation as best.”