The Constitution & the Supreme Court

Is it inherent in the nature of judicial review that the Constitution is in a constant state of revision by the Supreme Court?

The question identifies a relationship between an institution and a document, this relationship is mediated through a process. The question tries to identify whether an essence of this process is to ensure that the institution is constantly revising the document. Thus the question can be answered affirmatively if we discover that an integral feature of the judicial review process is to allow the Supreme Court to revise the Constitution.

To proceed we need to understand the nature of the judicial review that the Supreme Court conducts. Before describing the types and limits of such review it is worth emphasising that judicial review is a process specifically associated with the actions of the Supreme Court. Further to this, the scope of judicial review can be broadly divided into two different categories, first of which is the review of decisions by other branches of the Federal government and the second is the monitoring of state laws and the associated decisions of lower courts. The general aim of these processes of review is to ensure that all actions and decisions taken by the bodies under scrutiny are compliant with the Constitution.

Examining the caseload and decision process of the Supreme Court in recent years can allow us to support the assertion that judicial review does not lead to revision or effective change to the constitution. Take for example the Supreme Court ruling on the Communications Decency Act in 1997. In this case Justice Stevens ruled that Internet regulation legislation proposed by the Clinton administration was unconstitutional because it violated the First Amendment regarding free speech. In this process of review no change was made to the constitution, the document was applied in a new situation and a process of review determined that this particular Bill was inconsistent with the existing Constitution.

If the Clinton administration had wished to push through the Communications Decency Act in the form that was struck down they would have to make an amendment to the Constitution. That Amendment could take two forms; a repeal of the first Amendment or a new Amendment that specifically enumerated the Federal government with powers to regulate ‘patently offensive’ material on the Internet. The Supreme Court has no direct responsibility for the process of amending the constitution, Congress and the State Legislatures instead conduct the process. Thus with respect to revising the constitution by repealing provisions or appending new measures, the process of Judicial review by the Supreme Court has little impact because judicial review does not allow the Supreme Court to rewrite the constitution itself.

However, the actions and scope of judicial review by the Supreme Court do have a direct impact on the amendments Congress considers proposing. This process of causal interaction (if only indirect) between the Supreme Court and the Constitution can be seen clearly in the ratification of the 11th Amendment. This Amendment directly contradicted a Supreme Court ruling in the case between Chisholm and Georgia in 1793. In this suit the Supreme Court ruled that a plaintiff resident in one state could sue another state in a Federal Court. The 11th Amendment deprived citizens of the right to sue non-native states and when it became effective in 1795 it also restricted the power of Federal courts to hear suits against states brought by aliens. The creation of the 16th Amendment occurred in similar circumstances where Congress and the State Legislatures contradicted a Supreme Court decision regarding income tax. Thus the process of judicial review has had a tangible impact upon the changing nature of the constitution; hence, it appears justified to answer affirmatively to the question posed.

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Further contemplation of the nature of these Amendments with respect to the initial Supreme Court decisions makes that affirmation appear slightly ridiculous; the two Amendments represent a contradiction of the Supreme Court’s interpretation of the Constitution. In that sense the process of judicial review has not been responsible for revision in the Constitution, it has merely uncovered a ‘Constitutional roadblock’ that Congress needs to create a bypass for.

Even if we accept that the Supreme Court was the initial cause behind the subsequent modification of the Constitution then it is still not possible to answer affirmatively to the ...

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Even if we accept that the Supreme Court was the initial cause behind the subsequent modification of the Constitution then it is still not possible to answer affirmatively to the question; two Amendments effected in over two hundred years does not qualify as a constant state of revision. Therefore if we interpret revision of the Constitution in the strict sense as changes to the codified document then it is reasonable to assert that it is not inherent in the nature of judicial review that the Constitution is under a constant state of revision by the Supreme Court.

This may be a satisfactory conclusion under one of the meanings of revision but the lexical ambiguity present in that word means that the question has to be explored in another dimension. It is also necessary to consider whether an essence of the judicial review performed by the Supreme Court is to modify the interpretation of the Constitution. The dichotomy present in the lexical ambiguity surrounding ‘revision’ in this context is interrelated to the concept of explicit and implicit Constitutions. Much reference is made to this distinction when explaining the nature of the British Constitution where the explicit constitution does not exist, but the implicit or conventional Constitution is quite ostensible. The existence of an explicit codified Constitution in America may lead us to conclude, vice versa, that the USA does not have an implicit Constitution, but, this would represent a woeful paralogism.

The Supreme Court is the protagonist in deciding how the Constitution is interpreted; it decides the implicit meaning of the Constitutional text and which laws and acts are deemed unconstitutional. The well-worn cliché ‘The Constitution is what the Supreme Court Justices say it is’ emphasises the substantial interpretative power political commentators’ attribute to the Supreme Court. Given this extended power of effectively creating the meaning of the Constitution, it is reasonable to state that Supreme Court has the power to revise the Constitution through interpretation, however, it is unclear whether the Supreme Court uses this power to revise and redefine the Constitution.

It can be argued that the Supreme Court just acts as the arbiter of an ‘enduring Constitution’ and that it does not alter either the explicit text or the implicit meaning of the document. This doctrine of judicial review and Supreme Court action is known as strict constructionism, the most prominent and devout exponent of this philosophy on the current court is Justice Scalia. He summarises his own position in I do not ‘believe in the living constitution, this document that morphs from generation to generation. I favour what some might call the dead Constitution, but I prefer to call it the enduring Constitution.’ If all the Justices adopted the notion of an enduring Constitution in the same way that Justice Scalia has then, according to the doctrine of originalism, the process of judicial review has no revising connotations, it simply represents the preservation of the original meaning of the Constitution and any Amendments.

However the purity of the doctrine of strict constructionism can be called into question when we consider the process of judicial review scrutinising acts that were not even remotely interpreted by the original framers of the Constitution. The ruling on the Communications Decency Act that was mentioned previously represents such a case. This due to the fact that the framers of the Constitution could not have anticipated the advent of the Internet and the legislative parameters that would be justifiable in this situation. Other rulings that fit this profile include Roe v Wade in 1973 and the City of Akron v Akron Centre for reproductive health, both cases centred on methods of birth control (abortion) that were not available in the same form during the era in which the Constitution was framed.

Additional doubt can be cast upon the notion that the Supreme Court does not perform revision on the Constitution by examining if the Supreme Court Justices are all strict originalists in their approach to judicial review. Court experience and conflict in the late 20th Century demonstrates this is not the case, the conflict between Justices Douglas and Black over Griswold v Connecticut in 1965 shows that some Justices embody the aforementioned doctrine of strict constructionism whilst others take a less rigid position of loose constructionism. Justice Douglas justified his decision to strike down state legislation prohibiting the use of any contraceptives in Connecticut partly on the basis that this law violated the privacy concept contained in the penumbra of some of the enumerated provisions of the constitution. This interpretation of the actions of Justice Douglas would make him a loose constuctionist and would suggest that the meaning of the Constitution be continually subject to revision amongst some Justices.

Alternatively this decision can lead us to classify Douglas as a non- interpretivist, which is a doctrine held by those who believe that the interpretation of the Constitution should be based as much on modern normative conceptions of justice and society as the text of the document. The non-interpretivist nature of Justice Douglas’s behaviour is evidenced is his statement ‘(the state law violated) an unstated right of privacy older than the Bill of Rights’ when explaining his decision in the Griswold v Connecticut case.

The notion of rights and powers predating the Bill of Rights and the Constitution can also help to explain the nature of judicial review. Scholars have traced the origin of judicial review as far back as 1610 to the English Court of Common Pleas, but in an American context the precedent stretches back to the actions of Colonial Courts and specifically the case of James Otis in 1761. Otis claimed that British officers had no legal right to search his property unless they specified what they were intending to find, the Colonial Court ruled against Otis, but, the deliberation established a new trend in Court action and was representative of the nascent process of judicial review. This case has direct relevance to the creation of the 4th Amendment in the Constitution that safeguards ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’

The case also demonstrates that judicial review had a causal effect on the eventual composition of the Constitution. However, this effect did not extend to explicitly outlining the power of judicial review in the constitution; Article III of the Constitution defines the domain of the Federal Courts as simply ‘cases and controversies’ without making particular reference to the Constitution. Yet the process of judicial review itself forms an implicit part of the Constitution. Therefore if any Justices adopt a loose constructionist or a non-interpretivist position then the implicit Constitution is continually being revised, due to the changes that take place on a day to day basis in the practice of judicial review.

Thus it appears likely that the Constitution is continually changing because an inherent feature of judicial review in my opinion is to have attendant Justices with a variety of positions on the interpretation (or non- interpretation) of the Constitution. This does not fully answer the question with respect to the constant operator in the question, in one sense it allows us to answer affirmatively because we have established the rate of Constitutional change is partially a function of judicial review conducted by the Supreme Court. However, in a more precise sense we have not determined that the rate of constitution change determined by judicial review is constant and it appears that if we analyse the rate of change it is unlikely to be stable.

The process of determining the rate of change of the Constitution with respect to the actions of the Supreme Court could be performed with reference to the grid below.

The position on the graph above represents the interpretative properties of the Supreme Court with respect to economic intervention and Federal power over individuals. Each position represents a locus that translates the Constitution into a series of enforced decisions and rules, this translation is mainly performed through the review of contentious cases in writs of Certiorari. These decisions are then referred to and used as precedents for subsequent rulings in lower courts.

A recent example of a probable upward shift in the interpretative locus of the Supreme Court was the decision (not completely finalised) to commute the anti trust sanctions against Microsoft. Many commentators have posited that the new President George W Bush used his influence over Supreme Court processes to effect this decision, thus one of the variables inside the function that determines the interpretative locus is the incumbent political party. The orientation of the incumbent political party influences the process of judicial review in two ways; firstly is the explicit influence of choosing new appointments and secondly in the implicit political influence which political networks have.

Changes in contemporary social thinking and shifts in notions of equality and fairness can also modify the position of the interpretative locus. A seminal work that may have had this effect is the Theory of Justice (1971) written by John Rawls. It explores the notion that notions of justice should be constructed by individuals before they are conscious of the demographic group and racial profile they inhabit.

Thus the interpretative locus is continually changing, however, the rate of change is volatile because of sudden changes in the incumbent political party, paradigmatic shifts in social thinking and changes in the composition of the court. The individual who had the most profound influence on the make-up of the Supreme Court this Century was Franklin Delano Roosevelt because the length off his tenure allowed him to determine almost all of the Supreme Court Justices. His choices went on to enjoy great longetivity in their roles and have a profound influence on Civil Rights Development in the 1950’s. In brief conclusion, it is inherent in the nature of judicial review that the Constitution is under continual revision by the Supreme, however the volatility of the variables affecting the nature of judicial review means that the rate of revision is anything but constant.