An Active, But not an Activist, Judiciary
The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the judiciary, because he believes that judges have substantial discretion to construct the Constitution, even when the semantic meaning is not clear. But it does not follow that the judiciary cannot vigorously discover and enforce the meaning of provisions that might seem indeterminate to a layperson.
Judges have many tools to clarify the meaning of provisions that may seem vague, opaque, or ambiguous. The Constitution was not created ex nihilo but against a background of legal methods that help make legal meanings more precise. To decline to deploy these legal methods is to discard a valuable portion of our traditional science of law. Judges are simultaneously empowered and constrained by these methods.
As I have argued, this view of judicial duty had overwhelming support in the founding era. For instance, James Iredell, one of the first Supreme Court Justices, affirmed that judges have a duty of clarity before invalidating legislation under a constitution, whether state of federal. But he also made clear that judges use “every consideration” in forming a judgment as the meaning of the Constitution, even if this process proved “difficult.”
Justice Roberts provided an example of this process in NFIB v. Sebelius in his interpretation of the Commerce Clause. The question of whether the Congress could use its authority under the Commerce Clause to impose an individual mandate for citizens to buy health insurance was the first constitutional issue he addressed. Whether a mandate is a regulation of commerce among the states is not clear from an initial glance at text of the Constitution. A doctrine of constitutional deference that simply permitted Congress to employ any interpretation of the text that a rational person could think plausible would likely have required upholding the mandate.
But while the Chief Justice did begin with language suggesting that a certain degree of deference toward Congress was appropriate, he went on to clarify the meaning of the Clause to hold that Congress did not have such power by using distinctively legal methods. First, he noted that “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” Chief Justice Roberts further clarified the meaning of “regulate commerce” by applying an antisurplusage canon: “If the power to “regulate” commerce included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to “coin Money,” in addition to the power to “regulate the Value thereof.” Id., cl. 5. And it gives Congress the power to “raise and support Armies” and to “provide and maintain a Navy,” in addition to the power to “make Rules for the Government and Regulation of the land and naval Forces.”” The Chief Justice also observed that “If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary.” Thus he concluded that the better reading of the Commerce Clause did not include the power to mandate an activity.
The recent case of Heller v. District of Columbia provides another instance where Court used methods of clarification to interpret the Second Amendment. The debate in the case turned on the question of whether an individual has a right to own and use arms in connection only with a militia or to possess and own arms unconnected to militia service, making them available for traditionally lawful purposes like self-defense. As Larry Solum has noted, the Court per Justice Scalia proceeds by showing that the second reading is better than the first: “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.” Scalia notes that “The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
To bolster his position that the ablative absolute at the beginning of the sentence does not modify the rest of the sentence, Justice Scalia observed that the relevant canon of interpretation at the time of the Framing posited that a prefatory clause could clarify an ambiguity, but could not otherwise limit or expand the operative clause.
Thus, in two of the most important recent constitutional cases, we have models for the process of clarification through legal methods. The judiciary can be active without being activist.