For years, students of American government have been taught a highly compartmentalized version of our democratic system where legislative actors “make” law, actors in the executive branch “enforce” law, and judges in the judicial branch “interpret” law. Under this overly simplistic framework, the Supreme Court is often characterized as citizens' exclusive protection from myopic lawmakers who would flout the dictates of the Constitution to achieve their short-term policy goals and/or enhance their own authority. The collection of essays in Congress and the Constitution, edited by Neal Devins and Keith E. Whittington, presents a challenge to this conventional wisdom.
Each essay envisions a more complex view of the congressional “role” vis-à-vis the Constitution, where members have both instrumental and philosophical reasons to consider the constitutional implications of their actions. For this nuanced perspective alone, the book is well worth a careful read by serious students of courts, Congress, and constitutional interpretation. The book, however, also raises many interesting issues about the capacity of Congress to interpret the Constitution, the incentives members have to do a good job, and the standards by which we should evaluate their constitutional judgments—especially in areas where judges are loath to intervene, making legislative constitutional interpretation, in effect, the only constitutional analysis likely to influence the actions of lawmakers.
The essays vary widely in their approach and substantive areas of focus. This is a reflection of the multidisciplinary nature and appeal of the inquiry into the incidence, quality, and implications of congressional constitutional interpretation. The editors should be praised for their successful efforts to bring together law professors, practitioners, and political scientists who study the inner workings of Congress and the courts. The downside of this conglomeration of authors is that the essays do not flow very smoothly from one to the next, and some readers will find some essays more “satisfying” than others in terms of the empirical evidence authors bring to bear to support their assertions. Even strict empiricists, however, can surely learn something from the essay by David P. Currie, “Prolegomena for a Sampler,” about the history of extrajudicial constitutional interpretation before the Civil War. They may also gain new insights about how congressional agencies and lawyers operate to help members of Congress research constitutional issues in separate essays by Louis Fisher (“Constitutional Analysis by Congressional Staff Agencies”) and John Yoo (“Lawyers in Congress”), both of whom have practical experience working in Congress. Who knows? Reading these chapters might even lead to a testable hypothesis or two.
Sometimes the authors provide testable fodder themselves. For example, the first half of Michael J. Klarman's historical essay, “Court, Congress and Civil Rights,” describing the give-and-take between the Congress and the Supreme Court in protecting civil rights, is both interesting and informative—but his conclusions about why each institution took the lead during different historical eras is certainly subject to question, or at the very least competing explanations. The same is true for his assertion that the reason the Brown decision was so influential in bringing about sweeping civil rights legislation in the 1960s was the national reaction to the sight of the violent effects of a southern political culture galvanized against integration televised on the nightly news.
The collection is loosely organized into three undelineated sections roughly covering congressional capacity/resources to interpret the constitution, interactions between the Court and Congress, and the ramifications of current and proposed institutional design structures for promoting the overall quality of legislative interpretation. The book could have been organized differently, and arguably it should have been. Essays that speak directly to one another are too far apart. The most obvious example is the point–counterpoint offered by Neil Devins in “Congressional Fact Finding and the Scope of Judicial Review” and by Barbara Sinclair in “Can Congress be Trusted with the Constitution?: The Effects of Incentives and Procedures.” Devins argues that the Court should restrict the deference it pays congressional fact-finding to areas where it has real incentives to “get to the truth.” According to Devins, fact-finding done in committees typically involves a great deal of posturing that is subject to manipulation by committee chairs with incentives to “stack the deck” in one direction or another. Sinclair, on the other hand, points to political and procedural realities of congressional investigation that constrain members' ability to consider only one side of an issue. As such, she argues that “the Court owes Congress deference, particularly on issues where the political and policy expertise that Congress possesses and the Court lacks is key” (p. 309).
Sinclair's concluding essay, arguing in favor of congressional competence in “fact-finding, deliberation and even ‘doing what's right, not what's popular’” (p. 309), also provides a direct counterargument to the need for “incremental” design changes proposed by Elizabeth Garrett and Adrian Vermeule in their essay “Institutional Design of a Thayerian Congress.” The need for such measures are also called into question in “Evaluating Congressional Interpretation: Some Criteria and Two Informal Case Studies” by Mark Tushnet, who concludes that Congress has been “responsible” in interpreting the Constitution in areas where the court is reluctant to intervene, including impeachment and war powers issues.
This brings me to my final point: The collection would benefit from a more comprehensive concluding overview of the ideas and findings in the book. Often, essays seem to contradict each other and even the premises of the editors in introducing the collection. Like many researchers who work at the intersection of Court/Congress relations, the editors perhaps overstate the conflict between the branches beyond what the evidence in the book realistically supports. They characterize Congress as reacting against an overzealous Court, describing the Rehnquist Courts “assault on Congressional power” in the 1990s with opinions that “pinch” Congress and “denigrate” the authority of Congress to interpret the Constitution (pp. 3–4). This characterization is not supported by all of the essays in the collection. For instance, using survey data in “Constitutional Attitudes about Constitutional Interpretation,” Bruce G. Peabody finds that many members of 106th Congress agreed that it was correct for them to defer to the Court on constitutional issues (although they did take a broad view of their ability to engage in their own analysis prior to and/or in the absence of a definitive statement by the Court on particular matters). Moreover, research described by J. Mitchell Pickerill in “Congressional Responses to Judicial Review” shows that for the most part, Congress is reacting appropriately to constitutional rulings by acting to change statutes to comply with constitutional requirements set forth by the justices, rather than contradict them.
There is also compelling evidence that the lines of respect between judges and legislators go the other way. Devins and Sinclair both comment on the desirability of the established practice of giving deference to congressional fact-finding. The essay by William N. Eskridge, Jr., and John Ferejohn, “Quasi-Constitutional Law: The Rise of Super-Statues,” suggests that large statutory schemes that gain acceptance over time, like the Sherman Anti-Trust Act and Civil Rights legislation of the 1960s, may help judges deal with complicated policy issues in our increasingly complex society, and thus be afforded “extra deference” over and above that given to ordinary legislation. The authors argue that the justification for such deference my lie in the strong normative force of their legislative purposes, which tend to increase over time as these “super-statutes” gain broad public acceptance.
Notwithstanding the problems with its organization, this collection presents a valuable contribution to the literature with its unique perspective on the role legislators play with respect to constitutional interpretation. Without question, many interesting research projects will be prompted by ideas set forth in this book. I, for one, look forward to seeing all of them.
