Judicial Interpretation of the Constitution

The Constitution speaks its values and commands to a variety of public officials and to the public at large. Throughout our history, political leaders have taken seriously their sworn duty to uphold the Constitution. Consider, for example, Thomas Jefferson’s pardon of those convicted under the Alien and Sedition Acts, Andrew Jackson’s veto of legislation eauthorizing the national bank, Harry Truman’s executive order desegregating the U.S. military, and the administrative enforcement of Brown v. Board of Education under Lyndon Johnson. Or consider Congress’s enactment of voting rights legislation during Reconstruction, civil rights legislation during the 1960s and 1970s, or protections for religious freedom in recent decades. In each instance, non-judicial actors acted on their best understanding of the Constitution’s broad principles to uphold individual rights or to define the proper scope of governmental powers and responsibilities.

Still, the judiciary has a special role in our system with respect to constitutional interpretation, even though the Constitution does not explicitly provide for judicial review. The reason is not simply that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That famous line from Marbury v. Madison, in the context of 1803, was not an assertion of interpretive supremacy but a claim of interpretive parity: the courts “as well as other departments” are bound by the Constitution and must interpret it when a dispute so requires. Yet two centuries later, the judiciary’s unique (though not exclusive) competence and authority to interpret the Constitution have become widely accepted “as a permanent and indispensable feature of our constitutional system.” In this way, judicial review itself exemplifies 24 Keeping Faith with the Constitution the adaptation of our constitutional system to the structural principle of checks and balances and to the Constitution’s purposes of “establish[ing] Justice” and “secur[ing] the Blessings of Liberty.”

Read the full – Judicial Interpretation (Chapter 2) here