Which term describes the courts power to overturn a law on the basis of its constitutionality?

In 1801, outgoing President John Adams had issued William Marbury a commission as justice of the peace — but the new Secretary of State, James Madison, refused to deliver it. Marbury then sued to obtain it. With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful.

“A Law repugnant to the Constitution is void.” With these words written by Chief Justice Marshall, the Supreme Court for the first time declared unconstitutional a law passed by Congress and signed by the President. Nothing stated in the Constitution gave the Court this specific power. Marshall, however, believed that the Supreme Court should have a role equal to those of the other two branches of government.

When James Madison, Alexander Hamilton, and John Jay wrote a defense of the Constitution in The Federalist, they explained their judgment that a strong national government must have built-in restraints: “You must first enable government to control the governed; and in the next place oblige it to control itself.” The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch.

The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review. Although no other law was declared unconstitutional until the Dred Scott decision of 1857, the role of the Supreme Court to invalidate federal and state laws that are contrary to the Constitution has never been seriously challenged.

“The Constitution of the United States,” said Woodrow Wilson, “was not made to fit us like a strait jacket. In its elasticity lies its chief greatness.” The often-praised wisdom of the authors of the Constitution consisted largely of their restraint. They resisted the temptation to write too many specifics into the basic document. They contented themselves with establishing a framework of government that included safeguards against the abuse of power. When the Marshall decision in Marbury v. Madison completed the system of checks and balances, the United States had a government in which laws could be enacted, interpreted and executed to meet challenging circumstances.

1.

5 U.S. (1 Cranch) 137 (1803).

Id. at 180.

See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 430 (1821);Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 362 (1816); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 139 (1810).

Id. The Court first struck down an action of the executive branch of the federal government as unconstitutional in Little v. Barreme, 6 U.S. (2 Cranch) 170, 177–79 (1804). The Court first struck down a state law as unconstitutional in Fletcher v. Peck. See 10 U.S. at 139.

The term "judicial review" refers to "a court's power to review the actions of other branches or levels of government[, and especially] the courts' power to invalidate legislative and executive actions as being unconstitutional."Black's Law Dictionary 976 (10th ed. 2014).

Professor Keith Whittington has distinguished between the concepts of "constitutional interpretation" and "constitutional construction." In an influential book on the subject, he wrote that both interpretation and construction of the Constitution "seek to elaborate a meaning somehow already present in the text." However, constitutional interpretation relies on traditional legal tools that look to internal aspects of the Constitution (e.g., text and structure) to ascertain meaning, whereas constitutional construction supplements the meaning derived from such traditional interpretive methods with materials outside of the text (e.g., moral principles or pragmatic considerations) "where the text is so broad or so undetermined as to be incapable of faithful but exhaustive reduction to legal rules." Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 1, 5–7 (1999).

Erwin Chemerinsky, Constitutional Law 11 (4th ed. 2013).

For example, the Constitution provides a clear, bright-line rule that individuals who have not yet "attained to the Age of thirty five Years" are ineligible to be President. See U.S. Const. art. II, § 1, cl. 5.

Chemerinsky, supra note 7, at 11; Cass R. Sunstein, The Partial Constitution 93–94 (1993).

U.S. Const. amend. II.

See District of Columbia v. Heller, 554 U.S. 570, 573–619, 635–36 (2008) (examining historical sources to determine the original meaning of the Second Amendment).

Laurence H. Tribe, The Invisible Constitution 1–4 (Geoffrey R. Stone ed., 2008).

The Court resolved this question inRiley v. California, holding that a warrant is needed to search the contents of a cell phone incident to an individual's arrest. See 573 U.S. ___, No. 13-132, slip op. at 28 (2014).

Harry H. Wellington, Interpreting the Constitution: The Supreme Court and the Process of Adjudication 3 (1990).

Professor Philip Bobbitt defines a modality for interpreting the Constitution as "the way in which we characterize a form of expression as true." Philip Bobbitt, Constitutional Interpretation 11 (1991). See also Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 592 (2001) ("The power to say what the Constitution means or requires—recognized since Marbury v. Madison—implies a power to determine the sources of authority on which constitutional rulings properly rest.").

The President appoints the Justices of the Supreme Court, who serve for life terms unless impeached and removed from office. U.S. Const. art. II, § 2, cl. 2; id. art. III, § 1.

See, e.g.,Hon. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37–41, 44–47 (Amy Gutmann ed., 1997) [hereinafter Scalia, A Matter of Interpretation] ("The ascendant school of constitutional interpretation affirms the existence of what is called the Living Constitution, a body of law that . . . grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and 'find' that changing law.").

Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1211 (1987).

Scalia, A Matter of Interpretation, supra note 17, at 44–47.

E.g., Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials 54–55 (2006) (discussing the argument that the Constitution should "be interpreted to facilitate the performance of government functions"); Hon. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 436 (1986) ("Aposition that upholds constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right. . . . Those who would restrict claims of right to the values of 1789specifically articulated in the Constitution turn a blind eye to social progress and eschew adaption of overarching principles to changes of social circumstance."); Hon. Stephen Breyer, Active Liberty 25 (2008) ("[O]ur constitutional history has been a quest for . . . workable democratic government protective of individual personal liberty. . . . And . . . this constitutional understanding helps interpret the Constitution—in a way that helps to resolve problems related to modern government.").

See Laurence H. Tribe, American Constitutional Law: Volume One 32 (3d ed. 2000) ("[T]he subject and substance of constitutional law in the end remains the language of the United States Constitution itself and the decisions and opinions of the United States Supreme Court. Modes of interpretation are means—however intricate—of explicating this subject and substance."). As discussed below, whether any particular source of meaning may serve as a proper basis for interpreting the Constitution is subject to debate.

Philip Bobbitt, Constitutional Fate: Theory of the Constitution6–7 (1982). This report does not examine the potential role of politics in judicial decisionmaking. See, e.g.,Lee Epstein & Thomas G. Walker, Constitutional Law for a Changing America: Rights, Liberties, and Justice 22 (8th ed. 2013).

This report does not provide an exhaustive list of the modes of interpretation. There is unlikely to be agreement on which methods such a list would include. See Bobbitt, supra note 22, at 8.

See also Fallon, supra note 15, at 592; Sunstein, supra note 9, at 95 ("It is impossible to interpret any written text without resort to principles external to that text.").

For example, in New York v. United States, the Court held that Congress could not directly compel states to participate in a federal regulatory program.505 U.S. 144, 188 (1992). In so holding, the majority opinion relied upon the text of the Tenth Amendment; historical sources; the structural relationship that the Constitution establishes between the federal government and states; and judicial precedent, among other sources. Id. at 174–83.

See U.S. Const. art. VI ("The Senators and Representatives before mentioned, and the Members of the several State legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."). Fulfilling this oath requires Members of Congress to read and understand the nation's founding document. See also Nixon v. United States, 506 U.S. 224, 228–29 (1993) (holding that the Constitution gave the Senate alone the power to determine whether it had properly "tried" an impeachment); Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979, 985–86 (1987) ("The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions.").

See, e.g., Russ Feingold, The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: The Deficiencies of House Rule XII and A Proposed Rule for the Senate, 67 Vand. L. Rev. 837, 846–49, 856 (2014) ("While members should vote upon legislation based on their own constitutional interpretations, which may be at odds with the Court's, they should not vote for legislation without any thought whatsoever regarding its constitutionality.").

See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) ("When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility.").

See, e.g., The Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the JudiciaryPart 1, 111th Cong. 62 (2010) (statement of Elena Kagan in response to a question from Senator Patrick Leahy) ("And I think that [the Framers] laid down—sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they say, what they meant to do. So in that sense, we are all originalists.").

See, e.g., Letter from Jefferson B. Sessions III, Attorney General, U.S. Dep't of Justice, to Elaine C. Duke, Acting Sec'y, Dep't of Homeland Sec. (Sept. 4, 2017), https://www.dhs.gov/sites/default/files/publications/17_0904_DOJ_AG-letter-DACA.pdf (advising the Department of Homeland Security that, in the opinion of the Attorney General, the Deferred Action for Childhood Arrivals (DACA) immigration policy is unconstitutional, stating, "As Attorney General of the United States, I have a duty to defend the Constitution and to faithfully execute the laws passed by Congress.").

See Scalia, A Matter of Interpretation, supra note 17, at 23–38.

See id.

See id. at 23.

Epstein & Walker, supra note 22, at 26. For additional examples of the Court's use of a textualist approach, see "Original Meaning" below.

Chemerinsky, supra note 7, at 16; Tribe, supra note 12, at 2–4; Sotirios A. Barber, On What the Constitution Means 9 (1984).

356 U.S. 86, 100–04 (1958) (plurality opinion). Justice William Brennan, providing the fifth and deciding vote in Trop, did not base his decision on the Eighth Amendment, instead concluding that denationalization exceeded Congress's war powers. Id. at 105–14 (Brennan, J., concurring).

Id. at 99–101 (plurality opinion).

Id. at 100–03 (stating that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society").

Epstein & Walker, supra note 22, at 25–26.

Justice Black once wrote that the First Amendment's statement that "Congress shall make no law . . . abridging the freedom of speech, or of the press" amounted to an "absolute command . . . that no law shall be passed by Congress abridging freedom of speech or the press." Hon. Hugo L. Black, A Constitutional Faith 45–46 (1968). This form of textualism is sometimes referred to as pure textualism or literalism. Epstein & Walker, supra note 22, at 26. Justice Antonin Scalia, who was both a textualist and an originalist, criticized this sort of "strict constructionist" approach to textualism. He wrote that a "text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Scalia, A Matter of Interpretation, supra note 17, at 23.

341 U.S. 494 (1951).

Id. at 509, 513–17.

Id.

Id. at 580(Black, J., dissenting) ("At least as to speech in the realm of public matters, I believe that the 'clear and present danger' test does not 'mark the furthermost constitutional boundaries of protected expression,' but does 'no more than recognize a minimum compulsion of the Bill of Rights.'") (citation omitted).

Id.

381 U.S. 479 (1965).

Id. at 485–86.

Id. at 507–27 (Black, J., dissenting).

Id. at 510.

Epstein & Walker, supra note 22, at 26. However, some textualist approaches may allow for consideration of contemporary values. For example, approaches based on present textual meaning may allow for consideration of these values to the extent that they have become incorporated in modern understandings of phrases in the Constitution (e.g., "cruel and unusual punishment"). Trop, 356 U.S. at 100–03; Bobbitt, supra note 22, at 36.

Epstein & Walker, supra note 22, at 26; Scalia, A Matter of Interpretation, supra note 17, at 37–41, 44–47.

See Hon. William H. Rehnquist, The Notion of a Living Constitution,54 Tex. L. Rev. 693, 695–97 (1976) ("The ultimate source of authority in this Nation, Marshall said, is not Congress, not the states, not for that matter the Supreme Court of the United States. The people are the ultimate source of authority; they have parceled out the authority that originally resided entirely with them by adopting the original Constitution and by later amending it.").

Bobbitt, supra note 22, at 37.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) ("A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind"); Epstein & Walker, supra note 22, at 26.

Bobbitt, supra note 22, at 38; Tribe, supra note 12, at 1–4.

Cf. Bobbitt, supra note 22, at 26.

Id. at 24, 37–38.

Gregory E. Maggs & Peter J. Smith, Constitutional Law: A Contemporary Approach 39 (3d ed. 2015).

Id.

Id.

Id. at 17; Robert H. Bork, Tradition and Morality in Constitutional Law: The Francis Boyer Lectures on Public Policy 10 (1984) ("[T]he framers' intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.").

Myers v. United States, 272 U.S. 52, 136 (1926); Hon. Antonin Scalia, Originalism: The Lesser Evil,57 U. Cin. L. Rev. 849, 852 (1989) [hereinafter Scalia, Originalism].

272 U.S. 52 (1926).

Id. at 176.

Id. at 109–21.

Id. at 116.

Scalia, A Matter of Interpretation, supra note 17, at 17, 44–45.

Id.

554 U.S. 570 (2008).

Id. at 635–36.

Id. at 573–619.

Maggs & Smith, supra note 58, at 18.

Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 204 (1980) (discussing arguments made by supporters of originalism). Proponents of original meaning generally oppose the use of foreign law to establish the original meaning of the Constitution unless it is English common law that predates the founding era. See Knight v. Florida, 528 U.S. 990, 990 (1999) (Thomas, J., concurring in denial of cert.); Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting) ("But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution."); Myers v. United States, 272 U.S. 52, 118 (1926) (discussing when English common law could be relevant to original meaning). Treaties to which the United States is party (or customary international law that is incorporated into domestic law) might be cited by a proponent of original meaning when interpreting the Constitution. See Ganesh Sitaraman, The Use and Abuse of Foreign Law in Constitutional Interpretation, 32 Harv. J. L. & Pub. Pol'y 653, 689 (2009) ("In cases where the fundamental rights that a court seeks to protect are described in a treaty or convention or are a matter of customary international law, the question is merely whether those rights are incorporated by domestic law.").

Maggs & Smith, supra note 58, at 17.

Epstein & Walker, supra note 22, at 27; Scalia, Originalism, supra note 62, at 852, 862–64. A textualist approach based on the original meaning may allow for consideration of contemporary values to the extent that a court finds the original meaning counsels for an application of contemporary values to modern factual circumstances. Maggs & Smith, supra note 58, at 36.

Scalia, Originalism, supra note 62, at 852, 862–64.

Maggs & Smith, supra note 58, at 39.

Epstein & Walker, supra note 22, at 28; Maggs & Smith, supra note 58, at 40. Furthermore, opponents argue that original meaning is of little use when the provision of the Constitution to be interpreted and applied is broadly worded and open to several meanings, or when the Constitution is silent on an issue. Id. at 20. Arguably, the "original meaning" of some provisions of the Constitution (e.g., the Ninth Amendment) contemplates constitutional rights that exist independent of the text, and thus the drafters contemplated that interpreters of the Constitution would consider sources of meaning outside of the text and historical sources from the time of the Founding. SeeJohn Hart Ely, Democracy and Distrust: A Theory of Judicial Review 14, 33–40 (1980).

See Maggs & Smith, supra note 58, at 40–41.

Bobbitt, supra note 22, at 7, 10–12. Justice Scalia acknowledged the limits of historical sources. Scalia, Originalism, supra note 62,at 856–57.

Maggs & Smith, supra note 58, at 40–41.

Darrell A.H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 Yale L.J. 852, 935 (2013) ("Judges are not historians, and so, in addition to the risk that they will not understand the materials they are charged to consult, there is the additional risk that they will not conduct a dispassionate examination of the historical evidence and will simply marshal historical anecdotes to achieve what they have already decided is the preferred outcome.").

The Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary Part 1, 111th Cong. 62 (2010) (statement of Elena Kagan in response to a question from Senator Patrick Leahy) ("And I think that [the Framers] laid down—sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they say, what they meant to do. So in that sense, we are all originalists.").

Maggs & Smith, supra note 58, at 21.

Sunstein, supra note 9, at 103.

Brennan, supra note 20, at 436–37; Sotirios A. Barber, The Constitution of Judicial Power 7 (1993). For example, it seems possible that many of the ratifiers of the Fourteenth Amendment would have favored segregation by race and gender.Sunstein, supra note 9, at 121.

C. Herman Pritchett, Constitutional Law of the Federal System 37 (1984).

Under Article V, two-thirds of the states' legislatures may also call a constitutional convention to propose amendments. See U.S. Const. art. V.

Id.

Pritchett, supra note 87, at 37.

Michael J. Gerhardt, The Power of Precedent 147–48 (2008) ("[I]t is practically impossible to find any modern Court decision that fails to cite at least some precedents in support."). This report's concept of "judicial precedent" is limited to prior decisions of the Supreme Court. However, the concept of "precedent" is arguably much broader, encompassing "norms," "historical practices," and "traditions." Id. at 3. For a discussion of the use of historical practices in interpreting the Constitution, see "Historical Practices" below.

Bobbitt, supra note 22, at 7. Black's Law Dictionary 1366 (10th ed. 2014) (defining "precedent" as "a decided case that furnishes a basis for determining later cases involving similar facts or issues"). The Court may also rely on commentary on these cases by academics and judges. Id. This report does not examine in any detail reliance on such commentary or the precedents of state courts or foreign tribunals in constitutional interpretation. See Brest et al., supra note 20, at 56.

Epstein & Walker, supra note 22, at 29.

See Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 76 (1991) ("Precedents commonly are regarded as a traditional source of constitutional decisionmaking, despite the absence of any clear evidence that they ever have forced the Court into making a decision contrary to what it would rather have decided.").

Gerhardt, supra note 91, at 34–35.

505 U.S. 833 (1992) (plurality opinion).

Id. at 845–46 ("After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). Although the plurality in Casey declined to overrule the core aspects of Roe, it discarded Roe's "trimester approach" to evaluating the constitutionality of a state's restrictions on abortion in favor of a balancing test that considers whether such restrictions impose an "undue burden" on a woman's privacy interests protected by the Fourteenth Amendment. Id. at 872–77.

530 U.S. 428, 431–32 (2000).

Id. at 443; see also id. at 432 ("We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.").

576 U.S. ___, No. 13-1314, slip op. at 3 (2015).

U.S. Const. art. I, § 4, cl. 1.

Ariz. State Leg., slip op.at 35.

Id.at 15 ("Three decisions compose the relevant case law: Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916); Hawke v. Smith (No. 1), 253 U.S. 221 (1920); and Smiley v. Holm, 285 U.S. 355 (1932).").

Id. at 16.

Bobbitt, supra note 22, at 42.

"Stare decisis" refers to the "doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation." Black's Law Dictionary 1626 (10th ed. 2014).

See Gerhardt, supra note 94, at 70–71 (discussing arguments in support of the use of precedent).

Epstein & Walker, supra note 22, at 29; Gerhardt, supra note 94, at 85–87.

Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 749–50 (1988); Fallon, supra note 15, at 585.

Maggs & Smith, supra note 58, at 19.

Raoul Berger, Original Intent and Boris Bittkey, 66 Ind. L.J. 723, 747 (1991) (citation omitted).

See, e.g.,Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–10 (1932) (Brandeis, J., dissenting) ("[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions."); Smith v. Allwright, 321 U.S. 649, 665 (1944) ("[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.").

Bobbitt, supra note 22, at 52.

163 U.S. 537 (1896). In Plessy, the Court upheld the constitutionality of a Louisiana law mandating racial segregation in railway cars, determining that "separate but equal" public accommodations did not violate Thirteenth or Fourteenth Amendment guarantees. Id. at 542, 550–51.

Gerhardt, supra note 91, at 35–36.

Id. at 34–35 ("Applying precedents requires interpreting them, interpreting them frequently entails modifying them, and modifying them often entails extending or contracting them."); Epstein & Walker, supra note 22, at 30.

See Monaghan, supra note 109, at 769–70 ("In the interpretation of this written Constitution, we may assume that the founding generation was much attached to the original, publicly shared understanding of the document. Thus, one can make a good case that, as historically understood, the written Constitution was intended to trump not only statutes but case law. This argument is reinforced if one recalls that to the founding generation it was not clear that judicial opinions would need to play such a dominant role in establishing the meaning of the Constitution.").

Hon. Richard A. Posner, The Problems of Jurisprudence 31 (1990).

See Hon. Richard A. Posner, Cardozo: A Study in Reputation 28 (1990) (discussing Justice Benjamin Cardozo's views on pragmatism, as reflected in his jurisprudence, as contemplating a method "in which social interests behind competing legal principles are identified and (roughly speaking) weighed against each other to determine how a case lying at the intersection of those principles should be decided"); Hon. Richard A. Posner, What Has Pragmatism to Offer Law?, 63 S. Cal. L. Rev. 1653, 1670 (1990) ("All that a pragmatic jurisprudence really connotes . . . is a rejection of a concept of law as grounded in permanent principles and realized in logical manipulations of those principles, and a determination to use law as an instrument for social ends.").

Justice Byron White often argued that the Court should adopt a functionalist approach in separation-of-powers cases by considering the extent to which a particular reading of the Constitution would promote a workable government. See, e.g., INS v. Chadha, 462 U.S. 919, 984 (White, J., dissenting) ("It is long settled that Congress may 'exercise its best judgment in the selection of measures, to carry into execution the constitutional powers of the government,' and 'avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.'") (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415–16, 420 (1819)) (internal quotation marks omitted); William J. Wagner, Balancing as Art: Justice White and the Separation of Powers, 52 Cath. U. L. Rev. 957, 962 (2003) ("Where he encountered silence in the constitutional text, Justice White consistently deferred to congressional judgments on the best structure and functioning of government. The judiciary's role in these cases was simply to unmask any congressional attempts to deprive another branch of its constitutional power, not to apply formulaic rules.").

Brest et al., supra note 20, at 54–55.

468 U.S. 897, 926 (1984).

Id.

Id. at 907–08, 922.

Id.

560 U.S. 126 (2010).

Id. at 129–32.

Id. at 135–37.

Id. at 149–50. The factors included "(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute's enactment in light of the Government's custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute's accommodation of state interests, and (5) the statute's narrow scope." Id.

Id. at 142–43, 149–50.

Id.

Bobbitt, supra note 22, at 7. Brest et al., supra note 20, at 55.

Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 199–201 (1962). Alternatively, the court could rule on the merits on narrow grounds. Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court ix–xiv (2001).

Brest et al., supra note 20, at 55.

369 U.S. 186 (1962).

Id. at 231–37, 266–68. The majority opinion announced a standard to determine when a case presents a political question not suitable for resolution by the courts. See id. at 217.

See id.at 208–09.

Bobbitt, supra note 22, at 61; Brest et al., supra note 20, at 54–55.

Breyer, supra note 20, at 11–12.

Id.

See Scalia, A Matter of Interpretation, supra note 17, at 45–47.

See id.

Gerald Gunther, The Subtle Vices of the "Passive Virtues": A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1, 15–16, 21–23 (1964).

Some scholars refer to the general moral or ethical principles underlying the text of the Constitution as the "ethos of the law."Bobbitt, supra note 22, at 142.

Id. at 126.

Id. at 162.

Id. at 142.

539 U.S. 558, 578 (2003).

U.S. Const. amend. XIV, § 1.

Lawrence, 539 U.S. at 562.

See id. at 578.

347 U.S. 497 (1954).

Id. at 498–99 (citing Brown v. Bd. of Educ., 347 U.S. 483 (1954)).

Id.

Id.; see also U.S. Const. art. I, § 8, cl. 17.

U.S. Const. amend. V; Bolling, 347 U.S. at 498–500.

Id.

Id. at 499–500.

Hadley Arkes, Beyond the Constitution 19 (1990).

Bobbitt, supra note 22, at 106.

Barber, supra note 35, at 40 (discussing the view that the Constitution "marks out 'lines of growth' toward the real values of the framers and away from those of their views and attitudes that were inconsistent with their aspirations" (citing John Hart Ely, Constitutional Interpretivism: Its Allure and Impossibility, 53 Ind. L.J. 399, 410–14 (1978))).

Ely, supra note 78, at 1.

Bobbitt, supra note 22, at 102.

Arkes, supra note 159, at 60–62.

Bobbitt, supra note 22, at 137.

Id. at 138.

Id. at 139; Ely, supra note 78, at 59.

Id. at 5.

See id.

Bobbitt, supra note 22, at 94.

431 U.S. 494, 506 (1977).

Id. at 499–504.

Id.

319 U.S. 624 (1943).

Id. at 642.

Id. at 640–41.

Id.

Cf. supra notes 159, 162.

Cf. Thompson v. Oklahoma, 487 U.S. 815, 869 n.4 (1988) (Scalia, J., dissenting) ("The plurality's reliance upon Amnesty International's account of what it pronounces to be civilized standards of decency in other countries . . . is totally inappropriate as a means of establishing the fundamental beliefs of this Nation. . . . We must never forget that it is a Constitution for the United States of America that we are expounding.").

See supra notes 163-64.

Cf. supra notes 165-69.

Charles L. Black, Jr., Structure and Relationship in Constitutional Law 7 (1969) [hereinafter Black, Structure and Relationship].

John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1942–44 (2011); Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions—A Foolish Inconsistency?, 72 Cornell L. Rev. 488, 489 (1987) ("The Supreme Court has vacillated over the years between using a formalistic approach to separation-of-powers issues grounded in the perceived necessity of maintaining three distinct branches of government (and consequently appearing to draw rather sharp boundaries), and a functional approach that stresses core function and relationship, and permits a good deal of flexibility when these attributes are not threatened.").

462 U.S. 919 (1983).

Id. at 923, 946.

Id. at 952, 54–55.

Id.

514 U.S. 779 (1995).

Id. at 783. The Constitution imposes qualifications regarding minimum age, citizenship, and residency of a Member of the House or Senate, but it does not contain language expressly imposing term limits on Members. U.S. Const. art. I, § 2, cl. 2 (qualifications for Members of the House of Representatives); id. art. I, § 3, cl. 3 (qualifications for Senators).

U.S. Term Limits, 514 U.S. at 783.

Id. at 783, 822, 837–38; Kathleen M. Sullivan, Comment, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78, 88 (1995) ("The majority and the dissent deduced opposite formal structural axioms from the founding. To the majority, the founding was a 'revolutionary' act that replaced a confederation of sovereign states with a 'National Government' in which the 'representatives owe primary allegiance not to the people of a State, but to the people of the Nation.'").

U.S. Term Limits, 514 U.S. at 783, 822, 837–38. The Court also determined that the sovereign powers possessed by the states prior to the American Revolution did not include the power to establish additional qualifications for congressional service. Id. at 802.

Michael C. Dorf, Interpretive Holism and the Structural Method, 92 Geo. L.J. 833, 837 (2004); Strauss, supra note 183, at 489.

See Manning, supra note 183, at 1942–44.

17 U.S. (4 Wheat.) 316 (1819).

Id. at 425.

Id. at 411–12.

Id. at 419–21.

Id.

Id. at 409.

See Manning, supra note 183, at 1942–44, 1950–52, 1958–60. See also Myers v. United States, 272 U.S. 52, 116 (1926).

Manning, supra note 183, at 1958–60.

462 U.S. 919, 952, 54–55 (1983).

Id. at 951.

Manning, supra note 183, at 1950–52.

576 U.S. __, No. 13-628, slip op. at 1 (2015).

Id. at 29.

Id. at 11.

487 U.S. 654 (1988).

Id. at 659–60.

Id. at 663.

Cf. Humphrey's Ex'r v. United States, 295 U.S. 602, 629 ("We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers [subject to removal 'for cause'].").

Id. at 689–97.

Id.

Id. at 699, 703–04 (Scalia, J., dissenting).

Id. at 705–10.

Bobbitt, supra note 22, at 74.

Black, Structure and Relationship, supra note 182, at 13, 22.

Id. at 46.

73 U.S. 35, 39, 49 (1868).

Id.

Black, Structure and Relationship, supra note 182, at 27.

Id. at 13, 22.

Bobbitt, supra note 22, at 84; Sunstein, supra note 9, at 120.

Bobbitt, supra note 22, at 85.

Id.at 85–86; Alexander M. Bickel, The Morality of Consent 53 (1975).

Brest et al., supra note 20, at 56.

E.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) ("[A] doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice."); see also PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 21–25 (D.C. Cir. 2016) (summarizing Supreme Court cases using historical practices as a method of constitutional interpretation in separation-of-powers cases).

573 U.S. __, No. 12-1281, slip op. at 1 (2014).

Id. at 21.

576 U.S. __, No. 13-628, slip op. at 1 (2015).

Id. at 29.

Id. at 20–21.

463 U.S. 783 (1983).

Id. at 784.

Id. at 788–89.

Id. at 786.

The arguments in the following three paragraphs draw heavily from the sections supra on "Original Meaning," "Judicial Precedent," and "Moral Reasoning."

Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation,2013 Wis. L. Rev. 965, 969 ("[Functionalism] is a model of interpretation that invites the use of historical practice as self-affirming support for meaning.").

Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) ("The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them."); see also Turley, supra note 239, at 969.

Cf. Gerhardt, supra note 94, at 70–71, 86–87 (discussing similar arguments in support of the use of judicial precedent in constitutional interpretation).

Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1, 40 ("[I]nterests in stability and related rule-of-law considerations, such as consistency, predictability, reliance, and transparency, also can be advanced by adhering to long-standing practices, regardless of whether they date to the early post-Founding period.").

Cf. Epstein & Walker, supra note 22, at 28 (reciting arguments made against original meaning as a method of constitutional interpretation).

Bradley & Siegel, supra note 242, at 41–44;Bobbitt, supra note 22, at11 (summarizing arguments made against original meaning).

Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 122 & n.13 (defining "law office history" as "the selection of data favorable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the relevance of the data proffered").

Bradley & Siegel, supra note 242, at 27–29.

Cf. Brennan, supra note 20, at 436–37.

NLRB v. Canning, 573 U.S. __, No. 12-1281, slip op. at 4–5 (2014) (Scalia, J., concurring in the judgment) ("[P]olicing the 'enduring structure' of constitutional government when the political branches fail to do so is 'one of the most vital functions of this Court.'") (citation omitted); id.at 47–48 ("Even if the Executive could accumulate power through adverse possession by engaging in a consistent and unchallenged practice over a long period of time, the oft-disputed practices at issue here would not meet that standard. Nor have those practices created any justifiable expectations that could be disappointed by enforcing the Constitution's original meaning. There is thus no ground for the majority's deference to the unconstitutional recess-appointment practices of the Executive Branch.").

See Manning, supra note 183, at 1943 ("[F]unctionalists believe that Congress has substantially free rein to innovate, as long as a particular scheme satisfies the functional aims of the constitutional structure, taken as a whole.").

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