Dismantling the Judicial Aristocracy


By Shobana Subramanian.

Every day, lawyers across the country pore over thousands of pages of legislative documents, from debates on the House floor to committee reports. Legislative intent has become so enshrined in constitutional interpretation that one cannot quote the exact words of a congressional statute without analyzing the process behind its enactment. Supreme Court Justices regularly cite legislative intent in their opinions and dissents; indeed, intent is often a key source of disagreement on the bench.

Of course, there are judges who disapprove of using legislative intent at all—most notably Justice Scalia. Following in the footsteps of Justice Hugo Black and, to a lesser extent, Justice Oliver Wendell Holmes, Jr., Scalia has long advocated relying solely on the legal text at hand, whether constitutional or statutory. Black’s philosophy, known as “textualism,” is not very popular in the current legal climate. However, the arguments against legislative intent merit serious consideration, especially as we are faced with an increasingly polarized Court, stemming in part from a highly politicized system of legal interpretation.

Contrary to popular belief, textualism is not synonymous with strict constructionism. The former leaves room for context and plain reasoning, while the latter interprets the text exactly as it is, paying no heed to semantics. In Scalia’s controversial essay “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” the Justice calls for “[a] government of laws, not of men.” Under such a government, laws are what rule citizens, not the intentions behind them. The concept of rule of law, dating back to Aristotle, played an important role during the Founding of this country. Scalia does not exaggerate when he denounces legislative intent as “incompatible with democratic government.” When citizens are ruled by legislators and not by laws, they are not citizens but subjects.

To make matters worse, in searching for intent, judges often read their own beliefs and values into laws. If citizens are not ruled by legislators, they are ruled by (often unelected) judges who have taken on a role in government that was never meant to be theirs. Judges cannot consider legislative intent without including their own intent for the very simple reason that there is no objective legislative intent. The legislative process is filled with bargaining, debate, politics, committees, and compromise. There are 535 members of Congress; how does one decide whose intent represents that entire branch of government? Going through committee records, floor debates, and so on is ultimately a selective process. During the quest to find the one true intent, many others will be cast aside as less important. Thus the judge’s own values enter the interpretation, and the whole affair is exposed as not only hopelessly quixotic but damaging to the rule of law.

When it comes to interpreting the Constitution, a whole different argument persists—that between originalism and the Living Constitution. Originalism considers the original meaning of the text, while the Living Constitution considers the current meaning, changed to reflect an evolving society. The Living Constitution is similar to legislative intent in that it allows judges to use external factors—in this case, public opinion—to support their own beliefs and values.

At first glance, this seems like a good idea. The Living Constitution reflects the will of the people—democracy at its best. Justice Scalia offers a simple argument to the contrary. Currently, states are free to choose whether or not they want to have the death penalty. But should the Supreme Court rule the death penalty unconstitutional under the Eighth Amendment—as it did in Furman v. Georgia (1972)—there will no longer be any choice in the matter. It is much harder to overturn Court precedent then it is to pass a new law. The Living Constitution takes matters out of elected legislators’ hands and asks judges to decide them instead. Not only is that anti-democratic, but it violates the system of checks and balances.

Aside from its implications on government, the Living Constitution often ignores entire sections of the Constitution in its determination to reflect societal change. Continuing with the death penalty example, the Fifth Amendment reads: “No person shall be … deprived of life, liberty, or property, without due process of law.” The implication there is that with due process of law, a person can be deprived of their life—that is, sentenced to death. Such an originalist reading would not contradict textualism, as it is not considering the Framers’ intent or beliefs but the actual text of the Constitution as a whole. Intent need not be invoked for the sake of proper context. A Living Constitutionalist, in this case, would forgo both textual context and legislative intent. The result is a purely arbitrary decision based on little more than an opinion poll.

Now, the Living Constitution could be a viewed as a necessary check against democracy, except such a check already exists—the Bill of Rights. The notion of a Living Constitution implies that society will always evolve to become “better,” and that any constitutional changes will have a positive impact on society. But if the authors of the Bill of Rights believed that society would never turn against the rights they valued, then why would they codify them in the first place? Society does not always improve; oftentimes, it deteriorates.

The purpose of the Constitution is to secure certain fundamental principles of rights and government, not simply to provide a starting point for future theory. If the Constitution were subject to judicial revision, the Framers would not have devised a process for its amendment. In the 1870s, women’s suffrage activists challenged their plight in court under the newly ratified Fourteenth Amendment. They were unsuccessful, and women’s suffrage continued to be decided at the state level. In 1920, the Nineteenth Amendment was ratified, and the question was finally settled through democratic means. Yes, women could have voted forty years earlier had the courts authorized it, but in forcing activists to lobby the legislative branch, true societal change was achieved. And after it was passed, the Amendment made it much more difficult for reactionary legislators to prevent women from voting. It secured the franchise in a way no court decision could have.

Small changes made to the Constitution may seem like a worthy sacrifice for the sake of societal betterment. In the end, it comes down to who one fears more: the tyrannical minority of legislating judges, or the tyrannical majority casting votes at the ballot box. Adequate checks, such as constitutional rights and federalism, exist to protect the people from tyranny of the majority. It seems the only check against a tyrannical judiciary must come from within, from judges who can abandon intent and embrace a more formalistic approach to legal interpretation. 

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