Charles A. Beard - The Supreme Court and the Constitution

Before exploring why the debate over judicial review of legislation has continued with such vitality, it is useful to set out the classic assumptions and disputed positions in the controversy. The goal at this point is not to analyze these but only to catalogue them for future reference in this essay.

The pivot on which the entire debate revolves is that the Framers did not state, unequivocally and in a way which would foreclose the argument for all reasonable men reading the Constitution, that the Supreme Court had the power to review Congressional measures and hold them invalid if the Justices thought them unconstitutional. The situation resembles those of the Presidents inherent powers to act as chief executive or the Congress power to spend for the general welfare. in all three, the Framers created an appearance of authority and a description of it in vague terms, but did not draft with sufficient precision to resolve serious ambiguities. Time and the development of our political system have made these provisions central to American constitutional debate, but the Framers spoke only once on these subjects and no constitutional amendments have been passed dealing with judicial review, inherent presidential powers, or spending for the general welfare. The result is that the debate has proceeded at the level of original intention.

Coupled with this fact is the absence of comprehensive records of the Constitutional Convention to rely on for indications of intention. No transcript was taken at Philadelphia. We have the continuous notes of only one participant, James Madison, and meager, scattered notes from a few others. It is not too much to say that Madisons notes have become almost as disputed a written record as the text of the Constitution itself. Since the proceedings were secret, there is no newspaper coverage of the Convention, as there is for leading Congressional debates of the young Republic.

When the language of the Constitution is disputed, as here, there is a variety of criteria which can be used by the courts and by those speaking and writing about the issue as part of our constitutional politics. At least five such approaches can be identified. First, there is strict textual or word analysis, taking what the legislators put down on paper, defining it in dictionary fashion, and refusing to go beyond the words. The assumption of the textual school is that courts and executives should not re-write the Constitution; where ambiguities arise, the means of resolving them is constitutional amendment. A second approach is contextual analysis. Here, the analyst considers not only the text but also the section of the Constitution in which it appears, as well as the document as a whole, to map the environments of meaning in which the Framers placed the disputed clauses. Strictly textual construction, say the contextualists, robs words of their roots in the interacting scheme of government which the Framers assembled to write and which the nation ratified. A third technique adds the drafting process to the net of analysis. Here the analyst studies the progress of the clause from its earliest Convention draft (and even its history as an idea or in other laws or jurisdictions before it reached the Convention), through committees and general debate, through amendments and final stylistic changes, to the final language. Words, in the view of the drafting process analysts, mean more when one examines what fell by the wayside, what was deliberately rejected, and what was heartily approved. A fourth technique might be called developmental analysis. It adds to the others a consideration of the accretions of meaning which the disputed clause has acquired from the time of its enactment to the time of analysis, based upon governmental practices involving the power in question, court interpretations, and changed economic and political conditions. The argument for adding developmental factors is that, as the years advance since the original writing, increasingly broad constructions are needed to keep the purposes of the Framers in tune with new realities. Finally, there is a fifth standard, one which is rarely supported openly but is as real as rock nevertheless. I would call this institutional analysis. in the case of the Supreme Court, as guardian of constitutional construction (including construction of its own powers), this technique has the Justices manipulating the four above criteria in light of the values of society (as the Justices see them), particularly the values of consistency, predictability, and the primacy of the judiciary. Not all Justices would attach this institutional perspective, but a majority of the Court since Marshalls day has usually done so.