Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Introduction. Constitutional Adjudication Haunted by Indeterminacy

INTRODUCTION Constitutional Adjudication Haunted by Indeterminacy Theories of constitutional interpretation and constitutional adjudication seek to establish a model of constitutional review which enables courts to respond even to hard cases without transgressing the limits of the legitimate exercise of the review power.1 In the course of this exercise one of the riddles used to be the countermajoritarian difficulty, as exposed in Bickel’s landmark work The Least Dangerous Branch (1962). Theories that understand constitutional adjudication in the matrix of the continuing operation of the branches of government respond well to challenges that stem from the undemocratic nature of constitutional review. As Dworkin explains in Freedom’s Law,. “[w]hen a constitutional issue has been decided by the Supreme Court, and is important enough so that it can be expected to be elaborated, expanded, contracted, or even reversed by future decisions, a sustained national debate begins… That debate better matches [the] conception of republican government, in its emphasis on matters of principle, than almost anything the legislative process is likely to produce on its own.”2 Habermas’s discourse theory and its progeny also situate constitutional adjudication in its broader operational context: in the public discourse.3 The shared characteristic of these approaches is that they presuppose or require other participants in the public discourse to consider and respond to the decisions of constitutional review fora4 on their merits. In the meantime, theories explaining and (re)legitimizing constitutional adjudication as one ingredient in the perpetual discourse on public affairs should account for the problem posed by indeterminacy 2 INTRODUCTION in constitution adjudication. Indeterminacy as a phenomenon and problem is easily traceable in constitutional review. In the words of Dorf, “if the content of a constitutional right (or other constitutional provision) can only be determined by extensive deliberation, then the Constitution does not entrench rights (or other principles) in the sense of providing foundational assurances.”5 This is not to suggest that the words of the constitution can be twisted and turned into justifying any outcome, or that the constitutional text provides no guidance at all. Still, the experience of court watchers in most jurisdictions suggests that a particular constitutional provision may not sufficiently warrant (not to mention, compel) a particular outcome in a given case.6 Instead, the interpreter makes a choice from among more plausible outcomes or options.7 At the heart of the problem of indeterminacy in constitutional adjudication rests the realization that it is impossible to select one of several plausible interpretations in a principled manner. An account of indeterminacy with inclinations towards legal theory might distinguish radical (or infinite) indeterminacy from contained indeterminacy (plurality ) in constitutional interpretation.8 Nonetheless, from the perspective of legal certainty it makes little difference whether a constitutional review forum selects from a few, many, or innumerable plausible constructions. Such an indeterminacy of constitutional provisions might be understood as a beneficial factor: vagueness of constitutional language could be seen as a catalyst for public discourse on such terms as speech or due process for the purposes of the application of the constitution in every generation.9 Nonetheless, defenders of constitutionalism and the rule of law may be less appreciative of these benefits of indeterminacy when they find that the constitution’s binding reading of the day shuttles between narrow majorities of disenchanted justices. Participation in the public discourse is conditioned ––among other premises––by a criterion of rationality, a condition applicable to constitutional review fora as well. As Sajó points out, “[t]he rationality of law is provided by the administration of justice if the decisions are foreseeable, and modern law is legitimate if it is based on a rights-protective discourse.”10 The infamous uncertainty (open texture) of constitutional provisions makes this criterion of rationality rather challenging to meet. Constitutional Adjudication Haunted by Indeterminacy 3 Theories of constitutional interpretation can be seen as attempts to tame indeterminacy in constitutional reasoning, thereby simultaneously (re)defining the role proper of a court exercising constitutional review. Before the entry of originalism onto the U.S. scene, the line was drawn between interpretivist and non-interpretivist theories. Interpretivist theories evolved around giving a proper account of the written text of the constitution,11 while non-interpretivism relied on extra-textual sources, such as neutral principles.12 In the U.S. an interpretivist approach might find refuge in Marbury v Madison,13 the formative judgment of 1803 in which Chief Justice Marshall attributed overwhelming...