to judges, and
properly so. Who
would want to
convict a person
accused of murder
on the basis of a
popular vote?
us that we almost always must determine not whether a statute or other legal rule is wise (e.g., whether handguns should be regulated or whether doctors should be free to assist a patient’s suicide), but rather who has the legal power to make such a decision: individual or government? state or federal government? executive, legislative, or judicial branch? And it re- minds us (as does our small size and limited docket capacity) that a consti- tutional power-allocating answer must last, irrespective of today’s politics, for many years to come.
The concept acts as a substantive limitation in that the Constitution’s provisions (read together) create a framework for a certain kind of work- able government. That government is characterized by the rule of law, democratic responsibility for decisionmaking, the protection of basic hu- man liberties, fair procedures, equal treatment of citizens, and widespread dispersal of governmental powers (among different levels and branches of government) to assure that no small group of individuals becomes too powerful. The framework viewed substantively helps to explain individual provisions, as does the historical origin of each provision, for that origin typically tells a story that helps a judge identify the provision’s central ob- jective or value, thereby providing an interpretive key that promises a de- gree of interpretive consistency over time despite the fact that the content of highly general phrases, such as “interstate commerce” or “fundamental fairness” now may differ dramatically from that of two hundred years ago. I recognize that talk of a framework for, say, workable, liberal (in the liber- ty-protecting sense) democratic government, as well as descriptions of the “central values” embodied in particular provisions, sounds abstract. Still, those characteristics, especially when seen as part of a coherent framework, can help guide a judge’s response to particular questions by ruling out some answers and by highlighting the merits of others.
Fourth, I find constraint in the need to fit decisions within what one might call the legal “fabric,” a fabric that is itself tied, through purpose and through consequence, to actual human behavior. To say this is, in a sense, to repeat my first point, for every legal decision interacts (one might say “horizontally”) with other decisions, principles, standards, practices, and institutional understandings, always modifying the “web” of the law; and every decision affects (one might say “vertically”) the way in which that web, in turn, affects the world. Judges must often take account of vertical effects both because individual laws have particular individual purposes that guide legal interpretation and because legal institutions themselves are designed to help us solve the human problems that call them into being. I suggest, however, that, in respect to constitutional matters, estimates of vertical effects— that is, the real world consequences of horizontal inter- actions—have a particularly important role to play. In order to write an
opinion one might, for example, ask not only the obvious horizontal ques- tions, about, say, language, history, and precedent, but also such vertical questions as:
(a) How will lower courts, lawyers, government officials, and other in- stitutions (such as businesses and trade unions), who must rely upon the Court’s cases for authoritative guidance, implement the opinion’s holding? For example, should a constitutional rule that excludes il- legally seized evidence from criminal trials be applied to court offi- cials who negligently fail to check a computer-generated suspect list, in light of the need for a uniform, easily administered basic rule, or should it except them from the rule on the ground that their inclu- sion is administratively unnecessary?
(b) What theme or “music” does the opinion’s rhetorical language gen- erate? Consider the powerful practical effects, above and beyond an opinion’s holding, that use of a word like “sovereignty,” or a meta- phor such as “public forum,” can have in cases involving, say, Indian tribes or free speech. Think, too, of the disastrous practical impact of the phrase “separate but equal” on American life and the Court’s consequent difficulties in extricating the law from the phrase’s im- plications in the segregated society that it helped to bring about. (c) What effect will the opinion have upon the working relations be-
tween courts and other major governmental institutions? How will it affect the way in which the court itself works as an institution? (d) Should the opinion focus only on the facts characterized narrowly—
say, to avoid commitment to a “theme,” where consequences are not known, or where such commitment might mislead the public—or will so narrow a focus prevent the opinion from generating any clear and important principle?
Ultimately, what is the opinion’s real-world impact (its effect, not its popularity), considered in light of basic constitutional objectives?
The answers to these practical questions constrain. Where a serious dis- crepancy develops between the world as described in terms of the Consti- tution’s ultimate objectives and the world a particular decision helped to create, the constitutional rule will change. The Supreme Court realized by 1954, for example, that the Constitution’s Equal Protection Clause could not tolerate the racially segregated society that the Court’s earlier “separate but equal” cases had helped to establish. It properly overruled those cases, thereby indicating that constitutional interpretation itself is an ongoing, iterative, and self-correcting process.
Fifth, constraints arise out of the judge’s own need for personal con- sistency over time. Justice O’Connor has described a judge’s initial de- cisions as creating footprints that later decisions will follow. Moreover,