1 Alexis de Tocqueville, Democracy in America 270 (J.P. Mayer ed., George Lawrence trans., Anchor Books 1969) (1838).
2 See, e.g., Alden v. Maine, 527 U.S. 706, 712 (1999) (holding Congress could not use its Commerce Clause power to abrogate state sovereign immunity); Romer v. Evans, 517 U.S. 620, 623 (1996) (invalidating amendment to Colorado constitution); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398–400 (1937) (upholding maximum hour and minimum wage laws during Depression); Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 452 (1857) (striking down Missouri Compromise).
3 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803).
4 See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (“[W]e are not final because we are infallible, but we are infallible only because we are final.”).
5 The Court is insulated to the extent its members are appointed for life. See U.S. Const. art. III, � 1. At the same time, political forces shape the composition of the Court because the appointments are made by the President of the United States with the advice and consent of the Senate. See U.S. Const. art. II, � 2.
6 For instance, the Court handed down eighty decisions in 1996 alone. See Edward Lazarus, Closed Chambers 30 (1999). Against this number, extended over two centuries, stand the seventeen Constitutional amendments passed since the initial adoption of the Bill of Rights. See U.S. Const. amend. XI–XXVII. Further supporting this institutional view of slow change is the realization that a Court can be characterized as “activist” after overruling six precedents in a recent year. See Robert H. Bork et al., Symposium: Do We Have a Conservative Supreme Court?, 1994 Pub. Int. L. Rep. 125, 132 (1994).
7 Compare Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J., opinion), with id. at 398 (Iredell, J., opinion) (debate between Justices Chase and Iredell on proper role of natural law in Supreme Court adjudication).
8 See Lazarus, supra note 6, at 277 (“[Justice] Brennan was famous for holding up one of his hands, wiggling his fingers and reminding colleagues of the all-important rule of five.”).
9 For examples, see generally, Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Robert H. Bork, Tempting of America: The Political Seduction of the Law (1990); Ronald Dworkin, Law’s Empire (1986); Laurence H. Tribe, Constitutional Choices (1985).
10 Compare City of Boerne v. Flores, 521 U.S. 507, 527–28 (1997) (rejecting interpretive role for Congress) with id. at 536 (recognizing judicial role as different than congressional political role).
11 See supra note 9 for a small sample of authors.
12 See, e.g., Modern Constitutional Theory: A Reader 1–196 (John H. Garvey & T. Alexander Aleinikoff eds., 3d ed. 1994) (providing overview of significant interpretive and constitutional theories).
13 See, e.g., Dworkin, supra note 9, at 239–40 (implying that Hercules, the ideal judge, reaches “the answers I now think best.”).
14 See generally Scott Armstrong & Bob Woodward, Brethren: Inside the Supreme Court (1981); Lazarus, supra note 6.
15 See generally Dworkin, supra note 9; Bork, supra note 9.
16 See, e.g., Michael C. Dorf, The Supreme Court 1997 Term: Foreword: The Limits of Socratic Deliberation, 112 Harv. L. Rev. 4, 61 (1998); Cass R. Sunstein, The Supreme Court 1995 Term: Foreword: Leaving Things Unsaid, 110 Harv. L. Rev. 4, 62–77 (1996); see also Phillip Bobbitt, Constitutional Interpretation 178 (1991) (“The efforts of many thinkers . . . typically consist in trying to impose a meta-rule to resolve the indeterminacy . . . along lines of which the critic approves.”); Erwin Chemerinsky, Interpreting the Constitution, at xiii (1987) (observing that methodology debates are really about substance); Bork, supra note 9, at 202 (critiquing Professor Tribe for continually finding new methodologies to defend Roe v. Wade).
17 See Stephen M. Griffin, Symposium on Philip Bobbitt’s Constitutional Interpretation: Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1757–62 (1994).
18 See, e.g., Bobbitt, supra note 16, at 8–10; Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1192 (1987); Robert Post, Theories of Constitutional Interpretation, 30 Representations 13, 18–19 (1990).
19 See, e.g., Bobbitt, supra note 16, at xiii (evaluating interpretive disagreements between ideologues).
20 See, e.g., Griffin, supra note 17, at 1762–63 (summarizing three lines of pluralistic thought).
21 See id. at 1763–65 (listing recognized sources of value and summarizing how Post, Fallon and Bobbitt address the relationships between these sources).
22 See id. at 1768 (explaining descriptive and normative elements in pluralistic theory).
23 See infra notes 30–112 and accompanying text.
24 See 467 U.S. 837, 866 (1984). There is almost universal accord that at least some, if not all, of the Constitution consists of ambiguity. See, e.g., Akhil Reed Amar & Alan Hirsch, For the People: What the Constitution Really Says About Your Rights, at xxi (1998); Chemerinsky, supra note 16, at 135.
25 See infra notes 113–153 and accompanying text.
26 Cf. Chevron, 467 U.S. at 864–65 (discussing proper role of judges, distinct from “judges’ personal policy preferences”).
27 410 U.S. at 113.
28 521 U.S. at 507. See infra notes 154–220 and accompanying text.
29 See infra notes 221–308 and accompanying text.
30 See, e.g., Frederick Schauer, The Occasions of Constitutional Interpretation, 72 B.U. L. Rev. 729, 732 (1992).
31 See id. at 732–33.
32 U.S. Const. art. VI, � 2.
33 Because the Constitution is “supreme” its “law” would appear to transcend our concepts of “good” and “bad.” Although an argument might be made that the Preamble reincorporates these distinctions, it suffices for present purposes to note that, at face value, the Supremacy Clause appears to foreclose any appeal to extraneous value judgments. Cf. U.S. Const. pmbl.
34 See supra note 24.
35 For present purposes, only Congress and the Supreme Court will be considered. Congress has not directly asserted interpretive power over the entire Constitution. See Paul R. Dimond, The Supreme Court & Judicial Choice: The Role of Provisional Review in a Democracy 103 n.1 (1989).
36 See, e.g., Bobbitt, supra note 16, at x–xi.
37 Some examples include canons stating that in construction, absurdity should be avoided, and that usually the natural meaning is used rather than any technical meaning in construing a word. A rather exhaustive list of canons can be found in Chester James Antieu, Constitutional Construction. at ix–xi (1982).
38 See Griffin, supra note 17, at 1755–57.
39 See, e.g., David Lyons, Substance, Process and Outcome in Constitutional Theory, 72 Cornell L. Rev. 745, 760 (1987); Alan Hunt, Law’s Empire or Legal Imperialism, in Reading Dworkin Critically 9, 29 (Alan Hunt ed., 1992) (discussing attempt to ground legal theory within theory of interpretation); Cass R. Sunstein, Must Formalism be Defended Empirically?, 66 U. Chi. L. Rev. 636, 664–65 (1999) (discussing Easterbrook and theories of political legitimacy as precursor to formalism).
40 See, e.g., Dworkin, supra note 9, at 379–92 (Hercules applying law to Supreme Court cases).
41 See Garvey & Aleinikoff, supra note 12, at 2.
42 See id.
43 See id.
44 See Laurence H. Tribe, The Puzzling Persistence of Process-Based Theories, 89 Yale L.J. 1063, 1065–77 (1980); see also Garvey & Aleinikoff, supra note 12, at 2.
45 See John Hart Ely, Another Such Victory: Constitutional Theory and Practice in a World Where Courts are No Different from Legislatures, 77 Va. L. Rev. 833, 853–54 (1991) (criticizing doctrinaire trend in academic analysis).
46 See Griffin, supra note 17, at 1767.
47 See Bobbitt, supra note 16, at 28–30.
48 See generally id.; Fallon, supra note 18; Post, supra note 18.
49 See Fallon, supra note 18, at 1189–90.
50 See Bobbitt, supra note 16, at 5.
51 See Post, supra note 18, at 19–26.
52 See Griffin, supra note 17, at 1763–64.
53 See id. at 1757.
54 See id. at 1764–66 (summarizing views of Fallon, Bobbitt and Post regarding the possibility of conflicting answers).
55 See Bobbitt, supra note 16, at 168.
56 See Post, supra note 18, at 35.
57 See Fallon, supra note 18, at 1193–94.
58 Compare Fallon, supra note 18, at 1193–94, with John Rawls, A Theory of Justice 42–43 (1971) (describing lexical ordering as placing principles in serial order, where the first must be satisfied before moving on to the second, third and so forth).
59 5 U.S. (1 Cranch) 173, 179 (1803).
60 See id. at 175–76.
61 See Dimond, supra note 35, at 103 n.1.
62 See, e.g., Nixon v. United States, 506 U.S. 224, 226–28 (1993); Baker v. Carr, 369 U.S. 186, 209–37 (1962).
63 See Alpheus Thomas Mason & Donald Grier Stephenson, Jr., American Constitutional Law: Introductory Essays and Selected Cases 32–33 (9th ed. 1990).
64 See Marbury, 5 U.S. (1 Cranch) at 173–79.
65 See id. at 177.
66 See id. at 180.
67 See id.
68 See 60 U.S. (19 How.) 393, 452 (1856); see also Mason & Stephenson, supra note 63, at 35 tbl. 2.1.
69 See Mason & Stephenson, supra note 63, at 35 tbl. 2.1.
70 See infra note 71–74 and accompanying text.
71 See 358 U.S. 1, 4–11 (1958).
72 347 U.S. 483 (1954).
73 See Cooper, 358 U.S. at 4.
74 Id. at 18.
75 See infra note 76–90 and accompanying text.
76 See 369 U.S. 186, 237 (1962).
77 See id. at 209–37.
78 See id. at 210–11.
79 See, e.g., id. at 223–25 (detailing judicial refusal to enter into political question cases); Luther v. Borden, 48 U.S. (7 How.) 1, 46 (1849) (holding question of which government of Rhode Island was legitimate government was a political question for Congress, not amenable to judicial resolution).
80 See 369 U.S. at 209–37.
81 See id. at 211, 226.
82 See 395 U.S. 486, 489, 521 (1969).
83 See id. at 548.
84 See id. at 519–548.
85 See id. at 550; see also id. at 559 (Stewart, J., dissenting).
86 See infra notes 87–90 and accompanying text.
87 See 506 U.S. 224, 226–28 (1993).
88 See id.
89 See id.
90 See id. at 228–29.
91 See 494 U.S. 872 (1990); see also City of Boerne v Flores, 521 U.S. 507, 512–15 (1997) (describing Congressional motivation).
92 See id. at 873–74.
93 See City of Boerne, 521 U.S. at 515; Eric E. Sterling, Drug Policy: A Smorgasbord of Conundrum Spiced by Emotions Around Children & Violence, 31 Val. U. L. Rev. 597, 605 (1997) (citing federal regulation protecting peyote use).
94 See City of Boerne, 521 U.S. at 516.
95 See id. at 515–16.
96 See id. at 512.
97 Id. at 530; see also id. at 518–20.
98 See City of Boerne, 521 U.S. at 530–32.
99 See id. at 527–29.
100 Id. at 519.
101 Id. at 520.
102 See City of Boerne, 521 U.S. at 519.
103 Id. at 529.
104 Id.
105 467 U.S. 837, 837 (1984).
106 See id. at 839.
107 See id. at 842–43.
108 See id. at 842.
109 See id. at 842–43.
110 See Chevron, 467 U.S. at 843.
111 See id. at 844–45, 864–66.
112 See 521 U.S. 507, 515, 536 (1997).
113 See, e.g., Civil Rights Act of 1991, Pub. L. No. 102–166, 105 Stat. 1071 (codified as amended in scattered sections of 42 U.S.C.) (1994) (overturning several Supreme Court decisions).
114 Chevron USA, Inc. v. Natural Ress. Def. Council, 467 U.S. 837, 866 (1984) (emphasis added).
115 See The Federalist No. 78 (Alexander Hamilton); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (1962) (identifying counter-majoritarian problem).
116 See Chevron, 467 U.S. at 843.
117 See id. at 865–66.
118 See id.
119 See id. at 866. The legal realist position held, in brief sketch, that on many questions the law did not provide a single answer; that it was indeterminate. In these indeterminate situations, more often than not it was subconscious biases or other processes that led to the outcome and that it was important to openly confront this problem. For the reader who does not want to read the collected works of Holmes and Brandeis or others associated with the realism movement, see Ely, supra note 45, at 835 n.7 (“Indeed, the very point of early realists like Holmes and Brandeis was that judges should understand what they are doing is not essentially different from legislating, and approach their jobs with appropriate restraint.”) (emphasis added).
120 See id. at 865–66.
121 See Chevron, 467 U.S. at 863–65.
122 See generally Dorf, supra note 16 (arguing common law method not flexible enough for modern pace of change.)
123 Although this sentiment (and the ideology associated with it) can be linked to Edwin Meese, see Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law 13 (2d ed. 1996), it really is a tautology based on the Constitution’s Supremacy Clause. See U.S. Const. art. VI.
124 Compare Chevron, 467 U.S. at 865–66 (one judicial response to ambiguity), with City of Boerne v. Flores, 521 U.S. 507, 527–29 (1997) (different response to ambiguity).
125 See U.S. Const. art. VII (ratification process), art. V (amendment process).
126 See, e.g., Leonard Levy, Original Intent and the Framers’ Constitution 350 (1988) (“The Framers had a genius for studied imprecision and calculated ambiguity. They relied on generalized terms . . . because politics required compromise, and because compromise required ambiguity.”) (emphasis added).
127 See id. at 294; see also Louis Fisher, Constitutional Dialogues: Interpretation as Political Process 229–30 (1988); Arthur Selwyn Miller, Social Change & Fundamental Law: America’s Evolving Constitution 3 (1979).
128 Compare Levy, supra note 126, at 350 (discussing constitutional ambiguity) with Chevron, 467 U.S. at 865–66 (discussing statutory ambiguity).
129 See U.S. Const. amend. XIV.
130 Compare Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 78 (1873) (concluding Fourteenth Amendment not intended to fundamentally alter relationship between federal government and states) with Amar, supra note 9, at 163–71 (arguing for more expansive view of Fourteenth Amendment based upon historical materials).
131 See, e.g., Agostini v. Felton, 521 U.S. 203, 235 (1997) (“As we have often noted, ‘stare decisis is not an inexorable command,’ but instead reflects a policy judgment . . . That policy is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.”) (citations omitted).
132 As Oliver Wendell Holmes observed: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Respectfully quoted: A Dictionary of Quotations Requested from the Congressional Research Service 192 (Suzy Platt ed., 1989).
133 See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487–88 (1955):
[The] law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. . . . For protection against abuses by legislatures the people must resort to the polls, not to the courts”
Id. (internal quotation omitted).
134 See generally Amar & Hirsch, supra note 24 (arguing for overruling by plebiscite); Mark Tushnet, Taking the Constitution Away from the Courts (1999) (arguing that demise of judicial review would not be problematic because of democratic participation). Cf. Chevron, 467 U.S. at 864 (focusing on agency responsiveness, even though agency members are not elected).
135 Cf. Marbury, 5 U.S. (1 Cranch) at 170 (“The providence of the court is, solely, to decide on the rights of individuals, not to inquire how the executive or executive officers, perform duties in which they have a discretion.”).
136 See id. at 176–77.
137 Cf. id. at 173–76 (invoking tools of statutory construction); Griffin, supra note 17, at 1763–64 (discussing interpretive tools).
138 See Chevron, 467 U.S. at 843.
139 See, e.g., Karl Llewyelln, Bramble Bush 40 (1960).
140 See Griffin, supra note 17, at 1765 (describing current need to exercise legal judgment).
141 Cf. Bowsher v. Synar, 478 U.S. 714, 726–27 (1986).
142 See Marbury, 5 U.S. (1 Cranch) at 177 (unchanging text).
143 Cf. Chevron, 467 U.S. at 865–66 (analogous principle).
144 See Griffin, supra note 17, at 1764–65 (arguing, implicitly, that when multiple methods do not conflict, legal answer is clear).
145 Cf. Federalist No. 78 (Alexander Hamilton).
146 Cf. Chevron, 467 U.S. at 865–66 (asking same question in statutory context).
147 One can easily imagine Congress reversing a 5–4 decision this way—by tacking on an adoption of the dissenters’ rationale to a statute (or as a stand-alone bill). It seems difficult to imagine how the members of the Court would be able to characterize their dissenting colleagues as “unreasonable,” particularly if there is agreement among the dissenters (rather than a splintering of views).
148 See 467 U.S. at 863–64.
149 See id. at 843 n.11 (recognizing agency interpretation not necessarily what judiciary would decide as matter of first impression).
150 Cf. id. at 844 (“[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”).
151 See id. at 865–66.
152 See infra notes 153–217 and accompanying text.
153 See Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 995 (1992) (Scalia, J., dissenting); John G. Ferreira, Note, 10 Hofstra L. Rev. 1269 (1982).
154 See Ferreira, supra note 153, at 1270–71 (describing Human Life Bill attempting to overturn Roe).
155 See infra notes 182–196 and accompanying text.
156 See City of Boerne v. Flores, 521 U.S. 507, 512 (1997).
157 See 410 U.S. 113, 165 (1973).
158 See id. at 129.
159 See id. at 156–58.
160 See id. at 153.
161 See id. at 162–63.
162 See Roe, 410 U.S. at 163–64.
163 See id. at 164.
164 See id.
165 See id.
166 See Ferreira, supra note 153, at 1269 (summarizing reactions to Roe).
167 See id.
168 See id.
169 42 U.S.C. � 2000bb et seq. (1994).
170 See 410 U.S. at 158.
171 As Oliver Wendell Holmes observed, “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states.” Oliver Wendell Holmes, Collected Legal Papers 295–96 (Harold J. Laski ed., 1952).
172 This is analogous to the comity reflected in Supreme Court deference to state court constructions of state law and constitutions. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). This is reinforced by the multiplicity of potential state interpretations of a single text. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 348 (1816).
173 The justification for this point is fairly straightforward. The egg and sperm cells are live cells. See Michael J. Flower, Coming into Being: The Prenatal Development of Humans in Abortion, Medicine and the Law 437, 438–42 (J. Douglas Butler & David F. Walbert eds., 1992) (noting that it may be difficult to pin down the exact point during the fertilization process that those cells unite to become a “person”).
174 See U.S. Const. amend. XIV.
175 This point seems reasonable because the cessation of the heart is one criteria for determining death. See, e.g., Cal. Health & Safety Code � 7180 (West 1970 & Supp. 2001).
176 This is based on another criteria for determining death. See, e.g., Cal. Health & Safety Code � 7181 (West 1970 & Supp. 2001).
177 The Court in Roe seemed implicitly to recognize this point in its trimester framework. See Roe, 410 U.S. 164–65. The rationale is clear enough: if the child could survive on its own, its individuality and humanity could be considered realized, thus allowing recognition as a “person.” See also Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 846 (1992) (recognizing viability as point justifying regulation). But see also Flower, supra note 171, at 441 fig. 2 (recognizing other important transition points).
178 Although there is an argument that the Court in Roe did precisely that in its recognition of the state ability to ban most abortions post-viability. See 410 U.S. at 164–65.
179 See id. at 157 n.54 (recognizing equal protection dilemma).
180 One might imagine states that define personhood more broadly than Congress (or the Court). Assuming for the moment that this extended definition would not immediately violate the Constitution, there may be other ramifications that will be explored soon within the context of the Supreme Court’s current understanding of “person.” See infra notes 182–196 and accompanying text.
181 See Casey, 505 U.S. at 944 (Rehnquist, C.J., dissenting).
182 The contention here is that by attempting to remove the more outright political considerations from the judicial process, the Justices are left with choosing among the various constructions. They may surely consider what the ramifications of choosing one over another are in settling upon one construction. What should be singled out, however, is the attempt to water down, based on policy rather than legal justifications, the construction they have adopted to avoid unpleasant results, rather than accepting the ramifications of the construction they have adopted or outright switching to another option.
183 See Casey, 505 U.S. at 877 (replacing Roe trimester framework with requirement that abortion regulations not constitute an “undue burden” on woman’s right to abortion).
184 Cf. Black’s Law Dictionary 1216, 1479 (6th ed. 1991) (property as “that which belongs to one,” things “as property . . . contradistinguished from ‘persons’”).
185 Cf. Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 506 (Tex. 1987) (holding fetus neither “person” nor “property”); Kayhan Parsi, Metaphorical Imagination: The Moral and Legal Status of Fetuses and Embryos, 4 DePaul J. of Health Care L. 703, 785 (1999) (arguing that the fetus occupies a unique status, but comparable to “stewardship” of animals).
186 See William E. Buelow III, Comment, To Be and Not to Be: Inconsistencies in the Law Regarding the Legal Status of the Unborn Fetus, 71 Temple L. Rev. 963, 965 (1998) (arguing present status is “absolutely inconsistent”). The conundrum posed by the current, unexplained role of the fetus is adequately summed up in one Texas court’s observation: “Strangely, Texas law denies the mother and father of a viable human fetus capable of living outside the womb at the time of the negligent tort, the redress of a statutory wrongful death suit or survival claim for loss of the viable fetus, while at the same time Texas law classifies unborn animals as “goods,” so humans who own pregnant animals will have redress for the negligently inflicted death of their unborn animals.” Parvin v. Dean, 7 S.W.3d 264, 275–76 (Tex. App. Ct. 1999).
187 It is at least unclear if bodily parts are legally-cognizable property, see Moore v. Regents, 793 P. 2d 479, 488–89 (Cal. 1990) (finding patient’s cells not property after removal from body), but the fetus is arguably distinct from the mother, see Flower, supra note 173.
188 See Casey, 505 U.S. at 915 (Stevens, J., concurring and dissenting) (“One aspect of this liberty is a right to bodily integrity, a right to control one’s person.” ).
189 This directly follows from the Roe Court’s observation that the state’s interest is in “potential life” as opposed to existent life. See 410 U.S. at 162–63.
190 Cf. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“Property rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.’”).
191 See U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or property, without due process of law.”). This due process requirement is applicable against Congress and also against the states through the Fourteenth Amendment. See U.S. Const. amend. XIV, � 1.
192 See U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”). This requirement is not only applicable to the states, it can be invoked for interim damages for a “temporary taking.” See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318 (1987) (“It is axiomatic that the Fifth Amendment’s just compensation provision is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice should be borne by the public as a whole.”) (internal quotations omitted).
193 Again, under Roe and its progeny, there is no life, only “potential life.” See Roe, 410 U.S. at 162–63.
194 Cf. Roe, 410 U.S. at 162–165 (striking down most pre-viability regulations because state interest insufficient).
195 Cf. First Lutheran, 482 U.S. at 318–19 (requiring interim damages for a temporary taking by state).
196 Cf. id. at 314–16 (recognizing reasons for interim compensation).
197 See United States v. Causby, 328 U.S. 256, 266–68 (1946) (possible Fifth Amendment taking when planes constantly fly over house); Thornburg v. Port of Portland, 376 P.2d 100, 103 (Or. 1962) (nuisance easement constitutes taking even though planes do not fly directly overhead).
198 If we object to the possible commodification of the birth process, there is at least one response available, even if untried—the Court should state precisely what the legal status of the fetus is—if not a “person,” then it should state why it is not “property.” Moreover, it should explain how a constitutional right (a woman’s privacy right) can ever be outweighed by a statutory/political right (the state’s interest in protecting the “potential life”).
199 See, e.g., Laurence H. Tribe, Abortion: The Clash of Absolutes 7 (1992) (stating only political campaign available to advocates was to transform the federal judiciary).
200 See Roe, 410 U.S. at 156 (“If this suggestion of personhood is established, the appellant’s case, of course, collapses . . . .”) (emphasis added).
201 See id.; see also id. at 157 n.54 (recognizing possible equal protection problems with lesser punishments for abortions than other criminal offenses).
202 Nor does this realization necessarily detract from possible objections based on equal protection grounds (if women were solely targeted by any implementation of the view) or grapple with arguments that some level of disparate treatment between the born and unborn may be rational and/or constitutional. Rather, it should help people of goodwill move forward in understanding and resolving this thorny issue.
203 Again, the Court might be able to clarify its position by explaining precisely what the legal status of a fetus is. If the Court is going to make this a sui generis category, neither person nor property, the Court should at least lay out a reasoned justification for the choice. See supra note 184–186 and accompanying text; see also Casey, 505 U.S. at 846 (recognizing state’s interest in protecting fetus, but no mention of fetal “interests” or fetal legal status).
204 See Tribe, Abortion, supra note 199, at 7 (recognizing impasse between various interests in the abortion debate).
205 521 U.S. at 507.
206 494 U.S. at 890.
207 See City of Boerne, 521 U.S. at 512–13.
208 See id.
209 See id. at 515–16.
210 See id. at 536.
211 See id. at 530–35.
212 See City of Boerne, 521 U.S. at 536.
213 See id. at 529 (describing dangers of congressional substantive interpretation of the Constitution’s provisions).
214 See id. at 520–29.
215 See Amar, supra note 9, at 163–74.
216 See City of Boerne, 521 U.S. at 529.
217 See id. at 529.
218 One hint that such an approach might be worthwhile lies in Justice Scalia’s recent book. See Antonin Scalia, A Matter of Interpretation 136 (1997). Justice Scalia implies that, if the Constitution is more ambiguous by virtue of its aspirational qualities than he apparently believes it is, judicial review may be inappropriate. See id. This proposed method attempts to reconcile ambiguity with judicial review rather than deny an important role for either.
219 See Sunstein, supra note 16, at 18. (“Error costs are the costs of mistaken judgments as they effect the social and legal system as a whole.”).
220 See id.
221 See id. at 19.
222 See id.
223 See supra notes 153-218 and accompanying text.
224 These ideas are broached in the attacks on maintaining only minimal judicial review found in some of the works by Akhil Reed Amar, Alan Hirsch and Mark Tushnet. See generally Amar & Hirsch, supra note 24; Tushnet, supra note 134.
225 See, e.g., Tushnet, supra note 134, at 177–82 (defending a more flexible constitutional vision).
226 See supra note 127 and accompanying text. Further support lies in the realization that Chief Justice Marshall’s words about the “constitution we are expounding” in McCulloch v. Maryland, 107 U.S. (4 Wheat.) 316, 407 (1816), were raised to support allowing congressional discretion. See Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law 41(1986).
227 See Sunstein, supra note 16, at 100; Dorf, supra note 16, at 8.
228 See Sunstein, supra note 16, at 18 (using Internet as example of rapid change); Dorf, supra note 16, at 8.
229 See infra notes 230–244 and accompanying text.
230 See 60 U.S. (19 How.) 393, 452 (1856).
231 See Sunstein, supra note 16, at 49.
232 See id.
233 For a characterization of the decision as a mistake, see Sunstein, supra note 16, at 49. In order to arrive at the 50% figure, compare Marbury, 5 U.S. (1 Cranch) at 180 (assuming correct) with Dred Scott, 60 U.S. (19 How.) at 452 (assuming incorrect).
234 If the over one million dead and wounded do not stand as sufficient indictment of the dangers attached to judicial inflexibility, one need only look to the Great Depression for another poignant example. See 4 The New Encyclopaedia Britannica 681 (1983) (Civil War casualties). It is almost a truism that the active exercise of the judicial veto of federal statutes during the early Depression was erroneous. See, e.g., Cass Sunstein, The Partial Constitution 45 (1993). In 1937, when the Court began sustaining similar statutes and overruling prior decisions, the Court effectively admitted as much. See id. The previously invalidated programs may well have worked. At the very least, they deserve the benefit of the doubt. How many families that might have been helped had to suffer because of a constitutional mistake?
235 See, e.g., infra notes 236–239 and accompanying text.
236 See NLRB, 301 U.S. 1, 49 (1937); West Coast Hotel, 300 U.S. 379, 398–400 (1937); see also United States v. Darby, 312 U.S. 100, 115–16 (1941) (overruling key economic due process case).
237 See Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 Harv. L. Rev. 620, 620 (1994).
238 See id. at 621–23.
239 See id.
240 Cf. Tushnet, supra note 134, at 65–71 (examining objections to congressional constitutional interpretation and concluding that “skeptical rejection of populist constitutional law . . . is powerfully antidemocratic.”).
241 See, e.g., Amar & Hirsch, supra note 24, at 28 (defending constitutional plebiscites against mistakes because of flexibility to repeal).
242 347 U.S. 497, 500 (1954).
243 Consider the following cases: The Civil Rights Cases, 109 U.S. 3, 11 (1883), which restricted Congressional power to enforce civil rights to state action, while The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1872), effectively eliminated the reach of the Fourteenth Amendment’s Privileges and Immunities Clause. One of the earliest Dormant Commerce Clause cases, Hall v. Decuir, 95 U.S. 485, 487–88 (1877), struck down a state desegregation law for common carriers within the state, while the Supreme Court upheld a nearly identical law mandating segregation in Louisville, N.O. & T. Ry. Co. v. Mississippi, 133 U.S. 587, 594 (1890) (Harlan, J., dissenting) (“The Mississippi statute, in its application to passengers on railroad trains employed in interstate commerce, requires . . . separation of races, while those trains are within that state. I am unable to perceive how [Hall v. Decuir] is a regulation of interstate commerce, and [this] is not.”).
244 Compare Miranda v. Arizona, 384 U.S. 436, 467 (1966) (expanding Fourteenth Amendment protections), with supra note 243 and accompanying text (Supreme Court arguably reducing Fourteenth Amendment protections).
245 In this same vein, see Sunstein, supra note 16, at 18; Dorf, supra note 16, at 51; see generally also John Hart Ely, Democracy and Distrust (1980) (arguing for limited Supreme Court role).
246 See Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (explaining significance of reliance interests to stare decisis considerations dealing with prior constitutional decisions).
247 See Scalia, supra note 218, at 10–11.
248 See Amar & Hirsch, supra note 24, at 5.
249 Regardless of the empirical ability of citizens to track their congressional members or Court decisions, Court members are substantially removed from the political process. This follows from the insulation granted by the Constitution to the judiciary with life tenure. See U.S. Const. art. III. But see also Terri Jennings Peretti, In Defense of a Political Court 185 (1999) (noting public lack of knowledge of and affect toward Supreme Court).
250 See U.S. Const. art. V (amendment process requirements); see also Amar & Hirsch, supra note 24, at 5 (making reference to agency problems in enacting amendments).
251 See Edward H. Levi, An Introduction to Legal Reasoning 59 (1949).
252 See Fisher & Devins, supra note 123, at 13 (describing Meese view). This observation is being used in the most basic sense, to simply restate the Supremacy Clause of the Constitution in a different form.
253 See Tribe, Constitutional Choices, supra note 9, at 23–24; see also Civil Rights Cases, 109 U.S. at 11 (placing restrictive interpretation on terms of Fourteenth Amendment).
254 For other works adopting a similar perspective, see generally Amar & Hirsch, supra note 24; Tushnet, supra note 134.
255 See generally Amar & Hirsch, supra note 24.
256 Cf. Tushnet, supra note 134, at 174 (stressing important values in spreading constitutional responsibility throughout population).
257 Cf. James Madison, Speech to the House Explaining His Proposed Amendments with Notes for the Amendments Speech in The Rights Retained By The People 51, 58 (Randy E. Barnett ed., 1989) (aimed at general public).
258 See id. at 60–61 (role of justice tribunals in preventing constitutional violations).
259 See Dorf, supra note 16, at 7–8 (noting that Supreme Court uses common law, common law is incremental).
260 See supra notes 112–138 and accompanying text.
261 See supra notes 112–138 and accompanying text.
262 See supra notes 240–254 and accompanying text.
263 See supra notes 240–254 and accompanying text.
264 See supra notes 240–254 and accompanying text.
265 See supra notes 142–45 and accompanying text.
266 See supra notes 75–90 and accompanying text.
267 See, e.g., Baker v. Carr, 369 U.S. 186, 209–37 (1961).
268 See, e.g., Nixon v. United States, 506 U.S. 224, 239 (1993) (White, J., concurring); id. at 253–54 (Souter, J., concurring); Tribe, Constitutional Choices, supra note 9, at 22–28.
269 See Nixon, 506 U.S. at 239 (White, J., concurring).
270 Cf. id. at 239 (White, J., concurring) (noting Senate position that any arbitrary procedure or even no procedure was protected by the word “try” in Impeachment Clause.)
271 See supra notes 139–152 and accompanying text.
272 Cf. Baker, 369 U.S. at 209–37.
273 See Llewellyn, supra note 139, at 41–44.
274 One can get a feel for the power of facts by reading Justice Blackmun’s dissent in Deshaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 213 (Blackmun, J., dissenting) (where Justice Blackmun states “Poor Joshua!”).
275 Cf. Peretti, supra note 247, at 59 (referring to constitutional dialogue). But see Dorf, supra note 16, at 39–40 (arguing no real dialogues in current method).
276 See generally Stephen Carter, The Confirmation Mess: Cleaning Up the Federal Appointments Process (1994).
277 See id. at 80–81, 154 (mentioning predictability of judicial appointees and its problematic role), 71–72 (role of ideology), 83 (specific instance with Roe).
278 See Tushnet, supra note 134, at 55–56 (discussing similar concerns).
279 For a discussion of precedential value in a similar vein, if a different perspective, see generally Rebecca Hanner White, The Stare Decisis Exception to the Chevron Deference Rule, 44 Fla. L. Rev. 723 (1992).
280 See 347 U.S. 483, 495 (1954).
281 See Lawrence Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1231 (1978).
282 See, e.g., Sunstein, supra note 234, at 57–62 (analyzing Court’s economic cases during Depression).
283 See id.
284 See J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609, 639–41 (1982).
285 See id. at 640.
286 See Richard Epstein, The Mistakes of 1937, 11 Geo. Mason L. Rev. 5, 37–39 (1989).
287See Sunstein, supra note 16, at 30 (advocating minimalism where constitutionally relevant moral uncertainty).
288 See, e.g., Casey, 505 U.S. at 944, 966 (Rehnquist, C.J., dissenting) (four justices would overturn Roe).
289 See Dorf, supra note 16, at 51.
290 17 U.S. (4 Wheat.) 316, 407 (1819).
291 Cf. Tushnet, supra note 134, at 70–71.
292 See id.
293 See, e.g., Schauer, supra note 30, at 737–38 (justifying advising someone else to follow an interpretive strategy one personally would not follow).
294 See supra notes 59–104 and accompanying text.
295 See John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1895 (1983).
296 Levy, supra note 126, at 59; Edward Keynes & Randall K. Miller, The Court vs. Congress: Prayer, Busing & Abortion 153 (1989).
297 See Gibbons, supra note 295, at 1934–36.
298 See id. at 1926–36.
299 See supra notes 230–265 and accompanying text.
300 See Platt, supra note 132, at 126.
301 Compare City of Boerne, 521 U.S. at 512 (striking down RFRA), with supra notes 216–219 and accompanying text (arguing RFRA can be constitutional).
302 See David L. Gregory & Charles J. Russo, Let Us Pray (But Not “Them”!): The Troubled Jurisprudence of Religious Liberty, 65 St. John’s L. Rev. 273, 289 n.58. (1991).
303 Such an approach might clear the books of currently unconstitutional law, effecting a form of desuetude. See, e.g., Dorf, supra note 16, at 69–70 (arguing judges should strike down outdated laws and allow legislatures to reenact).
304 See supra notes 141–142 and accompanying text.
305 Cf. Tushnet, supra note 134, at 57–65 (discussing effect of judicial overhang on Congress).
306 See Amar & Hirsch, supra note 24, at xviii–xxi (arguing for benefits of rejecting clause-bound approach to interpreting Constitution); Amar, supra note 9, at xi–xiv (same).
307 See Tushnet, supra note 134, at 177–94.
308See generally Bruce Ackerman, We the People: Foundations (1991); see also Tushnet, supra note 134, at 67.