Understanding Constitutional Meaning and Judicial Interpretation

The role of the judiciary, as famously noted by Chief Justice John Marshall, is to determine the law. This often suggests a responsibility to interpret the Constitution and establish its meaning. However, interpreting the law and defining constitutional meaning are distinct tasks. Laws deal with specific cases, controversies, and the application of precedents. In contrast, constitutional meaning is more abstract, involving the architecture of our political community.

While courts contribute to our understanding of the Constitution, the question of its meaning is as much a public concern as it is a judicial responsibility. Only in recent decades have we equated legal decision-making with creating constitutional meaning. This has led to a strong form of judicial supremacy, where constitutional meaning is predominantly defined by court decisions. As legal historians Nikolas Bowie and Daphna Renan have noted, this often results in a small group of judges determining the structure of our political community.

Historically, the American public, through congressional representatives, has played a role in shaping constitutional meaning. They have acted to correct the judiciary when it exceeded its role. One notable instance is the reaction to the Supreme Court’s Dred Scott v. Sandford decision in 1857. The Republican Party opposed the decision, seeking to overturn it through legislation and constitutional reform. “Members of an ascendant Republican Party decried a court ‘inflated with supremacy’ and declared that whenever a decision is, ‘in the judgment of Congress, subversive of the rights and liberties of the people,’ it is the ‘solemn duty of Congress’ to override it,” Bowie and Renan observe.

Constitutional meaning originates from beyond legislatures and electoral politics. The Constitution was ratified by state conventions, reflecting a broader segment of the public rather than only governmental bodies. These conventions were intended to represent the people as a sovereign entity, as much as the context of 1787 allowed.