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Published online by Cambridge University Press: 12 May 2020
The liberal legacy of the Warren Court, the turmoil within and around its successor, and the advent of the bicentennial of 1787 have increased popular as well as scholarly interest in constitutional theory in general and constitutional interpretation in particular. We are now being treated to a new and intense version of an old debate about the nature of the American political system and proper institutional roles in determining the meaning of the principles underlying the polity. This debate highlights not only issues of fundamental disagreement but also central questions that must first be addressed before one can construct a systematic constitutional jurisprudence or a coherent theory of constitutional interpretation.
1 American law professors, most of whose students want to be practitioners and so must pass bar examinations testing doctrinal knowledge of American law, must focus on the work of American courts and judges. Political scientists, however, are free from such pressure, and certainly no intrinsic intellectual need for such cultural parochialism exists. There is a large and useful literature on comparative law in general and constitutional interpretation in particular. See, for example, Murphy, Walter F. and Tanenhaus, Joseph, eds.,Comparative Constitutional Law (New York: St. Martin's, 1977).CrossRefGoogle Scholar
2 See the casebook that I have done with Fleming, James E. and Harris, William F. II, American Constitutional Interpretation(Mineola, N.Y.: Foundation Press, 1986).Google Scholar
3 Cf. Murphy's, Paul L. similar call to historians: “Time to Reclaim: The Current Challenge of American Constitutional History,” 69 Am. Hist. Rev. 64 (1963).Google Scholar
4 462 U.S. 919.
5 See Barber, Sotirios A., On What the Constitution Means(Baltimore: Johns Hopkins University Press, 1984)Google Scholar; and Jacobsohn, Gary J., The Supreme Court and the Decline of Constitutional Aspiration(Totowa, N.J.: Rowman & Littlefield, 1986).Google Scholar
6 There is, of course, no single, monolithic democratic theory any more than there is a single, monolithic constitutional theory.
7 For a more detailed discussion, see Murphy, Fleming, and Harris, op. cit. note 2, chap. 2.
8 On the importance of the Preamble to constitutional interpretation, see Barber, op. cit. supra note 5, pp. 51-53; H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885 (1985); Crosskey, William W., Politics and the Constitution (Chicago: University of Chicago Press, 1953), I, 374–379Google Scholar; for a general discussion of the Preamble's background, see Donald S. Lutz, “The Preamble to the Constitution of the United States,” this Constitution (Sept. 1983), pp. 23-30.
9 Jacobson v. Massachusetts. 197 U.S. 11, 22 (1905).
10 “The Attorney General's View of the Supreme Court: Toward a Jurisprudence of Original Intention,” 45 Pub. Admin. Rev. 701 (1985); “The Battle for the Constitution,” Policy Rev., No. 35 (Winter, 1985), pp. 32-35.
11 William H. Rehnquist, “The Notion of a Living Constitution,” 54 Tex. L. Rev. 693 (1976).
12 Bork, Robert H., Tradition and Morality in Constitutional Law(Washington, D.C.: American Enterprise Institute, 1985)Google Scholar; part of this address is reprinted in Murphy, Walter F. and Pritchett, C. Herman, eds., Courts, Judges. & Politics(4th ed.; New York: Random House, 1986).Google Scholar
13 McCulloch v. Maryland. 4 Wh. 316, 415 (1819).
14 Ibid.
15 Most of the recent literature on constitutional interpretation deals — though usually in an unselfconscious fashion — with the question of HOW. For a general analysis of the range of possibilities here, see Murphy, Fleming, and Harris, op. cit. supra note 2, chap. 8. See also Bobbin, Philip, Constitutional Fate(New York: Oxford University Press, 1982)Google Scholar, chaps. 1-7; Craig R. Ducat, Modes of Constitutional Interpretation (St. Paul: West, 1978); and Murphy, Walter F., “The Art of Constitutional Interpretation,” in Harmon, M. Judd, ed., Essays on the Constitution of the United States(Port Washington, N.Y.: Kennikat Press, 1978).Google Scholar
16 See Black, Charles L., Structure and Relationship in Constitutional Law(Baton Rouge: Louisiana State University Press, 1969)Google Scholar; and Harris, William F. II, “Bonding Word and Polity,” 76 APSR 34 (1982).Google Scholar
17 Democracy and Distrust (Cambridge: Harvard University Press, 1980); and “The Wages of Crying Wolf: A Comment on Roe v. Wade,'’ 82 Yale L. J. 920 (1973).
18 See, however, his joining with Laurence H.Tribe in attacking bills in Congress to modify the Court's definition of a right to abortion in Roe v. Wade, 410 U.S. 113 (1973) — a ruling that he had, as his theory of the judicial function required, sharply criticized in “The Wages of Crying Wolf,” op. cit. supra note 17. “Let There Be Life,” New York Times, March 17, 1981, p. A17; reprinted in U.S. Senate, Committee on the Judiciary, Subcommittee on Separation of Powers, The Human Life Bill: Hearings on S. 158, 97th Cong., 1st Sess., II, 860 (1982).
19 See the discussion in Malone, Dumas, Jefferson the President: First Term 1801-1805(Boston: Little, Brown, 1970)Google Scholar, chap. 17.
20 See Jackson, Robert H., “A Presidential Legal Opinion,” 66 Harv. L. Rev. 1353 (1953).Google Scholar
21 323 U.S. 214.
22 Indeed, the day before the Court announced its decision in Korematsu, the government rescinded the earlier order excluding Nisei from the West Coast, and the War Relocation Authority announced plans to close all the camps within a year. The Solicitor General sent Chief Justice Stone copies of the critical order, Public Proclamation No. 21, as well as some of the interoffice correspondence dealing with the clearing of approximately 115,000 Nisei to resettle in their former neighborhoods. The last of the camps, however, was not closed until January, 1946. See Report of the Commission on Wartime Relocation and Internment of Civilians: Personal Justice Denied (Washington, D.C.: Government Printing Office, 1982), chap. 8.
23 In fairness to Herbert Wechsler, who carried the burden of defending before the Court the concentration camps his brief, though defending the concept of military necessity, made it quite clear that racism was not absent. He quoted such remarks of the General in charge of the program as “A Jap is a Jap” and World War II was “a war of the white race against the yellow race.“
24 Black's opinion for the Court in Korematsu insisted that the justices were judging the issue of military necessity from the perspective of 1942 rather than 1944; but in Duncan v. Kahanamoku, 327 U.S. 304 (1946), the Court's perspective regarding martial law in Hawaii, when the territory was in fact in danger of invasion, was clearly that of a post-war world.
25 Basler, Roy P., ed., The Collected Works of Abraham Lincoln (New Brunswick: Rutgers University Press, 1953), IV, 432–440.Google Scholar
26 Curiously, professional literature devotes scant attention to this issue. One significant exception is Barber, op.cit. supra note 5, pp. 59-62, 114-115.
27 Basler, op. cit. supra note 25, IV, 264.
28 To Justice William Johnson, June 12, 1823; Lipscomb, Andrew A., ed., Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association, 1903), XV, 451.Google Scholar
29 The Court announced its decision in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) on March 29, 1937; but the justices decided the case — and Roberts switched his vote — in December 1936.
30 Roberts, Owen J., The Court and the Constitution (Cambridge, Mass.: Harvard University Press, 1951), p. 61.CrossRefGoogle Scholar