Über die Autorin bzw. den Autor

Neal Devins is Goodrich Professor of Law, Professor of Government, and Director of the Institute of Bill of Rights Law at the William & Mary School of Law. Among his books are Shaping Constitutional Values: The Supreme Court, Elected Government, and the Abortion Dispute; The Democratic Constitution (coauthored with Louis Fisher); and A Year at the Supreme Court (coedited with Davison Douglas and published by Duke University Press).

Keith E. Whittington is Associate Professor of Politics at Princeton University. He is the author of Constitutional Construction: Divided Powers and Constitutional Meaning and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review.

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"The subject of this collection--the treatment of the Constitution by legislators in Congress--is both extremely interesting and important, and I do not believe that there is any other single book that is so effective in bringing together a wide range of relevant materials."--Sanford Levinson, author of "Wrestling with Diversity"

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Congress and the Constitution

Duke University Press

Contents

Acknowledgments.......................................................................................................................viiNeal Devins and Keith E. Whittington Introduction....................................................................................1David P. Currie Prolegomena for a Sampler: Extrajudicial Interpretation of the Constitution, 1789-1861...............................18Bruce G. Peabody Congressional Attitudes toward Constitutional Interpretation........................................................39Louis Fisher Constitutional Analysis by Congressional Staff Agencies.................................................................64Keith E. Whittington Hearing about the Constitution in Congressional Committees......................................................87Michael J. Gerhardt The Federal Appointments Process as Constitutional Interpretation................................................110John C. Yoo Lawyers in Congress......................................................................................................131J. Mitchell Pickerill Congressional Responses to Judicial Review.....................................................................151Michael J. Klarman Court, Congress, and Civil Rights.................................................................................173William N. Eskridge Jr. and John Ferejohn Quasi-Constitutional Law: The Rise of Super-Statutes.......................................198Neal Devins Congressional Fact Finding and the Scope of Judicial Review..............................................................220Elizabeth Garrett and Adrian Vermeule Institutional Design of a Thayerian Congress...................................................242Mark Tushnet Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies.....................269Barbara Sinclair Can Congress Be Trusted with the Constitution? The Effects of Incentives and Procedures.............................293About the Contributors................................................................................................................313Index.................................................................................................................................315

Chapter One

DAVID P. CURRIE

The subject of this book is the role of Congress in constitutional interpretation. The chapters that follow discuss that subject from a variety of theoretical and institutional perspectives. How do members of Congress view their own constitutional responsibility to the Constitution? What resources are available within the legislative branch to assist Congress in resolving constitutional questions? How can executive agencies help to ensure that Congress has the necessary information to make informed decisions? Is Congress likely to take its constitutional responsibility more seriously in some kinds of cases than in others? To what extent are constitutional questions actually addressed in modern congressional hearings? How can congressional procedures be reformed to improve the conditions for sound constitutional decision making? To what extent can Congress be trusted with constitutional interpretation? How does Congress react to judicial decisions invalidating its handiwork? How does Congress affect constitutional interpretation indirectly through such processes as Senate approval of nominees for federal office, reorganization of agencies, and the prescription of qualifications for appointment? Do some "super-statutes" acquire a "quasi-constitutional" status that adds to the arsenal of fundamental norms against which, in the absence of explicit repeal, later legislation must be measured? Should the degree of deference that courts afford to congressional judgment be tailored to the degree of consideration that Congress actually gave to the constitutional question?

This chapter is designed as a prolegomenon for what follows. Its aim is to set the stage for the ensuing dissection of current problems by providing an overview of the role of extrajudicial actors in early constitutional interpretation, as illuminated by my study over the past ten years of eighteenth- and nineteenth-century materials.

I begin with a brief discussion of the theoretical basis for extrajudicial interpretation and proceed to depict, in a general way, what one discovers on reading the early congressional and executive materials. In the modern spirit of verismo, I conclude this prologue with a slice of life, uno squarcio di vita-a brief case study designed to illustrate in somewhat greater detail the general conclusions put forward in this chapter.

WHO INTERPRETS THE CONSTITUTION?

Why the courts, of course-first and foremost the Supreme Court of the United States, but other courts as well. Witness the scads of judicial decisions, good and bad, that we all read and almost exclusively assign in courses on constitutional law; witness what is predominantly cited in briefs and oral argument in constitutional litigation; witness the stuff of standard law review articles and treatises on the Constitution.

Why? As Chief Justice Marshall told us in Marbury v. Madison, the judges all swear to uphold the Constitution; they must not violate it by doing what the Constitution forbids, like trying criminal cases without juries, even if Congress has directed them to do so. But the judges are not alone in this regard. Others swear to uphold the Constitution as well: presidents, cabinet officers, members of Congress-indeed every federal, state, and local officer in the land.

When we study Marbury v. Madison, we learn that the oath argument is hollow: that an officer swears to do his constitutional duty does not tell us what that duty is. Another part of Marshall's opinion, moreover, seems to suggest that courts may have a special role to play in constitutional interpretation: As Hamilton had said in the Federalist, the courts are an important element in a system of checks and balances designed to keep other branches of government from exceeding constitutional limits on their powers. The Framers, the argument goes, could not have meant for Congress to be ultimate judge of the scope of its own authority; that would smack too much of appointing the rabbit to guard the cabbages.

Indeed in the early Congress occasional speakers suggested that questions as to the constitutionality of proposed legislation should be left to the courts, but they were quickly shouted down; from the first it was understood that legislative and executive officers had a parallel responsibility to determine in the first instance the extent of their own powers. To paraphrase Marbury, it would indeed have been odd for the Constitution to place limitations on the authority of Congress and direct its members to ignore them, hoping that only the Court would defend them. As Presidents Jefferson and Jackson famously insisted, the Framers established multiple checks to ensure that their handiwork was respected.

Thus it was not surprising that President Washington took the Constitution for his guide-keenly aware, as he was, that everything he did would establish a precedent and determined to cut...