The common law understanding that what judges do is a matter of finding the law is enjoying a welcome return.
In his brilliant book The Ideological Origins of the American Revolution Bernard Bailyn wrote: “English law—as authority as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.” The Constitution itself was a product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. Understanding the Constitution correctly depends on giving appropriate weight to its common law background.
The judicial duty of clarity along with judicial methods of clarification reflects the common law background of judicial review. Philip Hamburger’s important work Law and Judicial Duty, shows that before the advent of the written constitution, conscience was the measure by which English judges evaluated government action and that this measure led them to reject government action only where there was manifest contradiction between the action and the unwritten Constitution. The common law was also informed by a philosophy of legal science that in the eighteenth and nineteenth centuries led jurists to try to harmonize all laws, if possible, because they were thought to reflect an underlying natural law. Law was regarded as more than a haphazard aggregation of holdings and statutes. Instead it tended to an organic unity. When the Constitution became written it was therefore only natural to try to find harmony between the statutes and the Constitution as well. This impulse to harmonization comported with the terms of prior English law—to require a manifest contradiction before substituting judicial judgment for that of other government officials.
Both of these aspects of the jurisprudential background help us understand why an obligation of judicial clarity comported with the general jurisprudence of the time and was a component of the larger concept of judicial duty that was the basis of judicial review. Judicial review and the duty of clarity were intertwined. There is substantial evidence from historical traditions that following the higher law was part of a judge’s legal duty at the time. But there is probably even more agreement that a duty of clarity was part of a judge’s duty in following that higher law.
But legal thought at the time is also consistent with engaging in searching inquiry into the constitutionality of law and not resting content with measuring constitutionality by any possible reading of a constitutional text. At the time of the framing of the Constittion interpretation took place against the background of a notion of a comprehensive legal science. Legal science seeks to use the full range of rules to find the accurate interpretation of a legal text, thus clarifying meaning which might otherwise be thought unclear.
The two strongest competitors to the judicial duty of clarity and clarification as the measure of the appropriate approach to judicial review—the view that no obligation of clarity should exist in judicial review and the view that any lack of clarity in the text triggers deference are opposite reactions both rooted in the more severe calculus of the Enlightenment than the winding historicity of the common law. The no-clarity approach depends on a stark syllogism. Judges are to apply the Constitution as higher law to displace the lower form of statutory law. Therefore, statutes should be invalidated whenever they conflict with the Constitution on the best reading, according to an ordinary preponderance of evidence standard.
The strong deference rule, in contrast, depends on a logic of power. Under this view, determining the reach of unclear texts makes judges sovereign. Sovereignty is better located in the legislatures. Judges should therefore defer whenever there is any lack of clarity of the face of a provision.
The difficulty with both these views is that they do not reflect the common law inheritance of the Constitution in all its mazy nature.