AN INTRODUCTION TO CONSTITUTIONAL INTERPRETATION

By Gerard J. Clark*
(final)

While the case of Marbury v. Madison1 has had its share of criticism2, its basic holding
that the Supreme Court is the final arbiter of the meaning of the Constitution is certainly
bedrock. However, given the “counter-majoritarian difficulty,”3 which suggests that judicial
review is in tension with democratic rule, the Court’s authority to displace majority decisions
found in state and federal law becomes problematic. The authority can be claimed as emanating
from the original social compact, ratified by a super-majoritarian popular consent and intended to
continue in time unless and until amended. However, claims of judicial tyranny can be heard by
the opponents of virtually every exercise of judicial review. In theory, the closer the decision is to
the original deal, the greater its legitimacy. But what was that deal-was it to keep judicial review
closely tied to the specific language and meanings of the founding document; or was it to vest the
Court with a degree of flexibility to fashion a body of law that assured that the meaning of
fundamental rights would develop and flourish in an ever changing world? The Court’s history
has seen frequent movement between these two poles.
Over the years a wide variety of interpretative theories or modes have been developed by
the Court or by individual justices. There is no definitive list of these modes and every
commentator has his or her own take on the matter4. The goal of this piece is to introduce the

1
*Professor of Law, Suffolk University School of Law. The author wishes to express his
thanks to Professor Steven Callahan for his thoughtful critiques of this article.

5 U.S. (1Cranch) 137 (1803)

2
Van Alstyne; A Critical Guide to Marbury v. Madison 1969 Duke L. J. ; Hand, Bill of
Rights; (1958) (“nothing in the Constitution gives the Court any authority to review the decisions
of Congress”); Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 4th
ed. (1996) p. 78 et seq.
3
Bickel, The Least Dangerous Branch (1962)
4
Few subjects have been as attractive to the academic commentators. See e.g.: Tribe,
American Constitutional Law (New York, Foundation Press, 2000) p. 30 et seq.; Balkin and
Levinson, The Canons of Constitutional Law 111 Harv. L. Rev. 964 (1998); Brown,
Accountability, Liberty and the Constitution 98 Colum. L. Rev. 531 (1998); Lessig, The Puzzling
Persistence of Bellbottom Theory: What a Constitutional Theory Should Be 85 Geo. L. Rev.
1837 (1997); Amar, “Intratextualism” 112 Harv. L. Rev. 747 (1999); Bobbit, Constitutional
Interpretation (1991); Dworkin, Freedom’s Law, The Moral Reading of the American
Constitution (1996); Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law
(1988).

1
most commonly used modes5. These modes may be viewed as tools of the trade of Constitutional
decision-making. No court nor justice has ever claimed allegiance to only one of the modes to the
exclusion of all others, although the Court of individual justices often overtly draw on them in
justifying decisions.
Four modes, that will be discussed in this piece, can claim a more or less direct
relationship with the document and may, therefore, be called originalist: text, intent of the
framers, structure and doctrine. Two others modes posit a set of values that are discovered in the
Constitution, at best, by implication, namely natural law and solicitude of the unfortunate; these
modes may be called extrinsic. In three of the modes the Court retraces and evaluates the
reasoning that led to the governmental action under review and the means used, and may,
therefore, be called super-rationalist. Finally, modern academia has been highly critical about all
of this, suggesting that the whole endeavor is political or invalid; these may be called the
skeptical.6

A. THE ORIGINALIST MODES

These four modes, text, intent of the Framers, structure and doctrine can clearly be
inferred from the Framers original efforts. They had a goal of nation building which they reduced
to a writing. The result shared power with the prior existing states and split federal power among
the three branches. The Court would expound the meaning of the document in written opinions
that decided actual cases.

I. TEXT

The Constitution is a document containing some ten to twenty pages of text- words or

5
Other theories of interpretation that could have been included here are republicanism,
which suggests that the law is guided by a sort of deliberative collective unconsciousness;
Ackerman, We, the People, Transformations formalism, which suggests that adjudication
involves definition and labeling, such as the line of cases which attempted to determine whether
effects on interstate commerce were “direct” or “indirect;”see Corwin, The Passing of Dual
Federalism 36 Va. L. Rev. 1, 1950; law and economic analysis which suggests that the Court
should seek efficient solutions to Constitutional problems; realism, consequentialism,
pragmatism, instrumentalism, and functionalism, all of which suggest that examination of real
world results is an important aspect of judicial review; the balancing mode, described infra,
makes use of these methods..
6
This last mode differs from the first eight in that it is not strictly speaking a methodology
used by the Court. It is included herein in the interest of balance because the true skeptic would
consider this whole article an exercise in futility.

2
narrative arranged in sections and amendments.7 The Framers spent four months in 17878 writing
and debating the text. They intended that their product would continue in time and control the
future, thus expressing, in a sense, a skepticism about future generations.9Certainly the text is the
appropriate beginning and end of the discussion of many easy cases. Should President Clinton
have suggested that he would like to run for a third term, the response is clear: the Twenty-
second Amendment states that “[n]o person shall be elected to the office of the President more
than twice,...”10
The questions about the use of text usually involve its limits and its methodology. The
limits arrive quickly upon the back of the non-obvious case, such as whether the Commerce
Clause of Article I section 8 authorizes Congress to enact grain acreage limitations. The most
absolute member of the court on these questions was Justice Black who seemed to feel that any
further inquiry into intent, history or pragmatics, involved the judge in an exercise that was too
vague and uncertain to be acceptable for a judge whose function was interpretation rather than
creation.11 Literary critics, however, remind us that the meaning of text must be created instead
of discovered.12
. The finest examples of the use of the text to justify a result are two the Marshall
opinions in McCollough v. Maryland13 and Gibbons v. Ogden.14

7
Grey, The Constitution as Scripture 37 Stan. L. Rev. 1 (1984); Scalia, A Matter of
Interpretation: Federal Courts and the Law (1997); Lawson, “On Reading Recipes ... and the
Constitution 85 Geo. L. Rev. 1823 (1997); Dorf, Recipe for Trouble: Some Thoughts on
Meaning, Translation and Normative Theory 85 Geo L. Rev. 1857 (1997); Lessig, Understanding
Changed Readings: Fidelity and Theory 47 Stan. L. Rev. 395 (1995); Dworkin, The Arduous
Virtue of Fidelity: Originalism, Scalia, Tribe and Nerve 65 Ford. L. Rev. 1249 (1997)
8
Farber and Sherry, The History of the American Constitution, (St. Paul, West Publishing
Co., 1990)
9
Levinson, Law as Literature 60 Tex. L. Rev. 373, 376 (1982)
10
Shauer, Easy Cases, 58 S.Cal L. Rev. 399 (1985)
11
Justice Black and the Bill of Rights CBS News Special 9 Sw.L. Rev. 937 (1977).
Notwithstanding these absolute statements, Black did sanction historical research into the intent
of the Framers in his famous Adamson dissent. Adamson v. California 332 U.S. 469 (1947).
12
S. Fish, Is There a Text in This Class? P. 327 (1980). See also F. Nietzche, On the
Genealogy of Morals p. 77 (W. Kaufmann Trans. 1967) “all events in the organic world are a
subduing, a becoming master, and all subduing and becoming master involves a fresh
interpretation, an adaptation through which any previous “meaning” and “purpose” are
necessarily obscured or even obliterated.”See discussion infra.
13
17 U.S. (4 Wheat.) 316 (1819). The question, of course, was whether Congress had the
power to create the Bank of the United States. Congress had the power to regulate commerce and

3
II. Original Understanding

to coin money, but not the power to create a bank. Marshall ingeniously read the necessary and
proper clause to allow Congress broad discretion to decide how to exercise these powers: “It is
true, that this is the sense in which the word “necessary” is always used? Does it always import
an absolute physical necessity, so strong, that one thing, to which another may be termed
necessary, cannot exist without that other? *** To employ the means necessary to an end, and
not as being confined to those single means, without which the end would be entirely
unattainable. *** The word “necessary” *** has not a fixed character peculiar to itself. It admits
of all degrees of comparison; and is often connected with other words, which increase or
diminish the impression the mind receives of the urgency it imports. A thing may be necessary,
very necessary, absolutely or indispensably necessary. To no mind would the same idea be
conveyed, by these several phrases. This comment on the word is well illustrated, by the passage
cited at the bar, from the 10th section of the 1st article of the constitution. It is, we think,
impossible to compare the sentence which prohibits a State from laying “imposts, or duties on
imports or exports, except what may be absolutely necessary for executing its inspection laws,”
with that which authorizes Congress “to make all laws which shall be necessary and proper for
carrying into execution” the powers of the general government, without feeling a conviction that
the convention understood itself to change materially the meaning of the word “necessary,” by
prefixing the word “absolutely.” This word, then, like others, is used in various senses; and, in
its construction, the subject, the context, the intention of the person using them, are all to be
taken into view.”
14
22 U. S. (9 Wheat.) 1 (1824) Here Marshall was confronted with the question of
whether Congress had the power to issue a license that allowed the holder to provide a ferry
service across New York harbor: “ The subject to which the power is next applied, is to
commerce “among the several states.” The word “among” means intermingled with. A thing
which is among others, is intermingled with them. Commerce among the states cannot stop at
the external boundary line of each state, but may be introduced into the interior. It is not
intended to say that these words comprehend that commerce, which is completely internal, which
is carried on between man and man in a State, or between different parts of the same State, and
which does not extend to or affect other states. Such a power would be inconvenient, and is
certainly unnecessary...
We are now arrived at the inquiry – What is this power?
It is the power to regulate; that is, to prescribe the rule by which commerce is to be
governed. This power, like all others vested in Congress, is complete in itself, may be exercised
to its utmost extent, and acknowledges no limits, other than are prescribed in the constitution.
These are expressed in plain terms, and do not affect the question which arise in this case, or
which have been discussed at the bar. If, as has always been understood, The sovereignty of
Congress, though limited to specified objects is plenary as to those objects... as absolutely as it
would be in a single government...”

4
 The drafting of the Constitution and each of the amendments involved extensive
deliberative processes. Innumerable drafts were written, speeches were given, reports were
developed. Contemporaneously newspapers, journals and commentators added their views. After
passage by the Convention, the proposals then went to the legislatures of the states for further
debate and deliberation. The original understanding refers to the meaning that was understood at
the time of enactment. It is discovered by a process of historical research into sources
contemporary to the enactment.15 The proponents of this mode of interpretation claim that any
freer ranging interpretive posture on the part of the Court involves an illegitimate assumption of
power and is thereby unjustified.
The difficulties with this method are numerous and difficult.16 The notion of intent or
understanding makes sense when directed at an individual; However it is difficult to attribute
these terms to a large group of legislators who deliberate and vote at different times, many for
unspoken reasons, including party affiliation, indebtedness to a committee chairman, political
pressure or compromise. An attempt to find a single unitary intent in a process as diffuse as
constitution-making seems futile. Even if it were not futile, what are appropriate sources? Why
should a court be influenced by a speech by one legislator on the floor of the House. Who is to
know the degree to which it represents the opinions of the majority? Why should the opinions of
Hamilton or Madison or Jay in the Federalist Papers have any especial significance in divining
the intent of the convention that finally passed on the final text of the Constitution.17
Further one can ask what was the original understanding about the legitimacy about this
exercise in the first place? Did the Framers expect that their language or indeed their speeches
would be parsed by future courts to find solutions to specific legal questions?18 This further
relates to a pervasive question of constitutional interpretation namely the specificity-generality
problem. Should the Court be bound by how the Framers would have answered the question
before the Court?, or by the interpretation that best meets the more generalized goals that the
Framers were pursuing? Did the Framers foresee broader and more free-wheeling common law-
type inquiries? Finally, how does one handle questions that were never conceived of by the
framers like wire-tapping or internet pornography?
Establishment Clause cases typically make extensive use of Madison’s notes and earlier

15
Bork, The Tempting of America: The Political Seduction of the Law (1990)
16
Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three
Objections and Responses, 82 Nw U. L. Rev. 226 (1988)
17
Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. Rev. 204
(1980)
18
Powell, The Original Understanding of Original Intent 98 Harv. L. Rev. 885 (1985);
see also Powell, Rules for Originalists 73 Va. L. Rev. 659 (1987)

5
drafts of the First Amendment. For instance in Lee19, Justice Souter’s concurrence quotes four
different earlier renditions of the religion clauses in support of his claim that the Clause was not
merely a prohibition against the preference of one religion over another. Justice Scalia, in dissent,
suggested that the Church of England was the established church in the colony of Virginia and
quoted George Washington’s prayer in his first inaugural address as evidence of the national
commitment to religion.

III.. Structural

The Constitution establishes and recognizes power-sharing on vertical and horizontal

planes. Vertically, it creates a national government, while leaving large amounts of residual
power in the states, a relationship of federalism. Horizontally, the federal power is distributed
among the legislative, the executive and the judicial branches, mirroring a similar distribution at
the state level, separation of powers. The Court as final expositor of the Constitution plays a
major role in drawing these two sets of boundaries. It does so explicitly when a case presents a
question which presents a power distribution question.
The Court must often decide whether to restrain itself from imposing a rule which might
displace an exercise of power by a branch or level more appropriate to the exercise. In these
situations, the court is in the somewhat strange position of having to police itself with respect to
its own exercise of authority. Professor Thayer considered the power of judicial review in a
democracy to be a “remarkable practice” to be exercised with the greatest restraint. An act of a
legislature should be invalidated only when it made a mistake “a very clear one-so clear that it is
not open to rational question.”20 Professor Bickel also advocated restraint through the exercise of
the passive virtues by which the Court may decide not to decide a matter because of fears about
the popular acceptance of the Court’s judgment or because as a practical matter the time for
decision is not opportune,21or the lack of an appropriate case or controversy under Article III,

19
Lee v. Weisman 505 U.S. 577 (1992) (ruling that invitations to clerics to offer
invocations at a school graduation violates the Establishment Clause)
20
Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.
L. Rev. 129, 144 (1893); see also Bickel, The Least Dangerous Branch (NY, Bobbs-Merrill, 1962
p 35 et seq.
21
Bickel, The Supreme Court, 1960 Term – Forward The Passive Virtues 75 Harv. L.
Rev. 40 (1961); see also a response in Gunther The Sublet Vices of the “Passive Virtues” – A
Covenant on Principle and Expediency in Judicial Review 64 Colum. L. Rev 1 (1964) Sunstein,
The Supreme Court,1995 Term- Foreword: Leaving Things Undecided (1996); 110 Harv. L. Rev.
4 (1996); Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999).

6
namely if the plaintiffs lack standing,22 or if the controversy is moot23 or unripe.24 The Political
Question doctrine also affords the Court with an opportunity to avoid decision of difficult cases.25
The concurring opinion of Justice Brandeis in Ashwander26 counsels that “it is a cardinal
principle that this Court will first ascertain whether a construction of the statute is possible by
which the question may be avoided” at p 348 and that the constitutional question will be avoided
if there is “present some other ground upon which the case may be disposed of.” at 347.
Likewise the Court may invoke abstention when a unresolved question of state law may moot out
a constitutional issue.27 An adequate state ground for decision28 bars constitutional consideration
as well. Finally the Court decides its own docket by exercising the power over certiorari.
However in recent years the Court has been active in cases presenting issues of

22
Lujon v. Defenders of Wildlife 504 US 555 (1992) (Court rejects a challenge to a
decision by the Secretary of the Interior that the Endangered Species Act does not apply extra-
territorially because the plaintiffs lack standing. Compare Friends of the Earth Inc. v. Laidlaw
Environmental Services (TOC), Inc ___ US ___ (2000) (plaintiffs “recreational, aesthetic and
economic interests” in a neighboring river created standing to challenge the dumping of
mercury.)
23
DeFunis v. Odegaard 416 US 312 (1974) (plaintiff’s challenge to law school affirmative
action plan is moot because plaintiff is admitted and will graduate).
24
O’Shea v. Littleton 414 US 488 (1974) (plaintiff’s fear of future prosecution is not a
care or controversy)
25
Nixon v. United States 506 U.S. 224 (1993) (an appeal form the impeachment of a
federal judge is non-justiciable); see also Henkin, Is There a Political Question Doctrine? 85
Yale L. J. 597 (1976)
26
Ashwander v. Tennesse Valley Authority 297 US 288 (suit by stockholder of a
corporation with a contractual relationship with the TVA, wherein plaintiff stockholder seeks to
challenge the power of Congress to create the TVA).
27
Ritz v. Bozanich 397 US 82 (1970) (in a case where plaintiff claims a Fourteenth
Amendment right to certain fishing licenses, the Court abstains to allow an Alaska court to
interpret a law defining the management of fish resources); see also Bush v. Palm Beach County
Canvassing Bd 121 S. Ct. 417 (2000) (Court remands an appeal from a Florida Supreme Court
order which allowed for manual re-counts and extended the time for certification of results by the
Secretary of State because of doubts as to the basis for the state court order.)
28
Wainwright v. Sykes 433 US 72 (1977) (failure to comply with a state contemporaneous
objection rule bars consideration of defendant’s claim of violation of the Fifth Amendment.

7
separation of powers.29 The decisions in Chahda30 and Bowsher31 deprived Congress of
important powers; Marathon Pipe frustrated efforts at court reform;32 Nixon33 and Clinton34 also
weakened the Presidency. Finally, formalistic separation of powers boundaries voided reforms
which both parties had sought for years, the line item veto.35
The Court is also the referee of federalism assuring that Congress avoids invading state
power and that the states avoid infringing upon federal prerogatives. Recently the Court has been
active in invalidating Congressional action in three principle areas; the Commerce Clause, the
Tenth Amendment and the Eleventh Amendment. Under the Commerce Clause the Court has
invalidated the Gun-Fee School Zones Act of 199036 and the Violence Against Women Act.37
Under the Tenth Amendment, The Court has defended state government from being
forced by federal statutes to do the bidding of Congress by invalidating the Low-Level

29
Clark, Checks and Imbalances 72 Mass L. Rev. 15 (1988).
30
Immigration and Naturalization Service v. Chadha 462 US 9191 (1983) (where the
Court went out of its way to find a one-house legislative veto unconstitutional in an expired
student visa separation case).
31
Bowsher v. Synor 478 US 714 (1986) (where the Court invalidated the Gramm-
Rudman-Hollings Act, wherein Congress attempted to impose some self-discipline against
spiraling budget deficit and where in the Court invalidated the Act because the Controller-
General, who was empowered to discipline an overspending Congress exercised execution
powers and was dismissible only upon statutory defend grounds).
32
Northern Pipeline Co. v. Marathon Pipe Line Co. 450 US 50 (1982) (ruling that
expanding the powers of bankruptcy judges violates Article III.
33
US v. Nixon 418 US 683 (1974) (forcing the President to respond to a third party
subpoena in a criminal case).
34
Clinton v. Jones 117 S.Ct 1636 (1997) (rejecting the Presidents claim or immunity or at
least a continuance in a claim of sexual harassment that pre-dated the presidency).
35
Clinton v. City of New York 524 US 417 (1998) (cancellation of line-items in a budget
violates the appropriation powers of Congress).
36
United States v. Lopez 514 US 549 (1995) (finding an insufficient link between
interstate commerce and the presence of guns in grammar schools).
37
United States v. Morrison ____ US ____ 120 S.Ct. 1740 (2000) (deciding the problem
of campus sexual violence is unrelated to the national commerce powers of Congress.)

8
Radioactive Waste Policy Amendment38 and the Brady Bill.39 Under the Eleventh Amendment
the Court has insulated the states from damages actions under federal statutes.40 Preemption also
adjusts inconsistencies between obligations under state and federal law.41
However structural concerns are a more subtle influence on the Court in cases in which it
recognizes that granting relief would serve to displace decisions made by bodies with more
expertise or in a better position to decide.42 .

IV. Doctrine

38
New York v. United States 505 US 144 (1992) (federal statute requiring states that do
not provide for the disposal of low-level nuclear waste to take title to those wastes is invalidated
as violative of the Tenth Amendment.
39
Printz v. United States ____ US _____ (1997) (Brady Bill, which imposes an obligation
on the states to do a background check on transferees of handguns is federally compelled
enlistment of state offices in violation of the Tenth Amendment.
40
Seminole Tribe of Florida v. Florida 517 US 44 (1996) (invalidating the Indian Gaming
Regulatory Act which allowed the Indian tribes to sue states in federal court to enforce the
statute’s requirement that the states negotiate with tribes in good faith to create Indian gaming
enclaves); Alden v. Maine 527 US 706 (1999) (The state’s “statutes as residuary sovereigns and
joint participants in the governance of the nation” insulates them from suit in their own courts by
a plaintiff who seeks to impose an obligation imposed by federal law, here the overtime pay
requirement of the FLSA.); Kimel v. Florida Board of Regents ____ US _____ (2000) state
insulated from claims under the Age Discrimination in Employment Act); Board of Trustees of
the University of Alabama v. Garrett ____ US _____ (2001) (same result re the Americans with
Disabilities Act of 1990).
41
Crosby v. National Foreign Trade Council 120 S. Ct. 2288 (2000) (penalties by
Massachusetts against contractors who had business relationship with Burma (Myanmar) are pre-
empted by a similar, but inconsistent statute enacted by Congress).
42
San Antonio Independent School District v. Rodriguez 411 US 1 (1973) (accepting
plaintiff’s claim that the property tax is an unfair basis for allocating funds for public education
would force the judiciary to decide matters of taxation and appropriations). Ingraham v. Wright
430 U.S. 651 (1977) (care must be taken lest judicial interference in public school discipline
undermine the authority of teachers). Meachum v. Fano 427 U.S. 215 (1976) (same for prison
administrators). See Wilkerson, Goss v. Lopez: The Supreme Court as School Superintendent,
1975 Sup Ct. Rev. 25; Schaefer Federalism and State Criminal Procedure 70 Harv. L. Rev. 1
(1956); Friendly, Is Innocense Irrelevant? Collateral Attack on Criminal Judgment 38 U. Ch. L.
Rev. 142 (1970).

9
 The federal judiciary established in Article III took its original shape and form from its
English predecessors43. That common law tradition dictated establishing and following
precedent. When confronted with a novel fact situation the common law court is concerned
about the past and the future: the past, because of a felt obligation to square its holdings with a
received body of case-law; the future, because the court’s decision will stand as precedent in
future cases. The system has the virtue of deciding only the narrow case and to that extent is
provisional, experimental, open to feed-back and incremental.44 Doctrine takes shape step by
step over time and is the product of the work of many minds.45
Courts have an obligation to be custodians of the law and to assure that the law is
coherent, clear and consistent,46 which in turn advances social stability and continuity.47 Each
decision should rest upon reasons “that in their generality and their neutrality transcend any
immediate result...”48 Of course a system of precedent also allows for narrowing and overruling
of precedent.49 The history of American Constitutional law has many famous examples of a
willingness or a refusal to overrule precedent. The Court’s blockage of Roosevelt’s New Deal is
well-known to even the casual student of American history, as is Roosevelt’s threat to pack the
Court. Justice Robert’s “switch in time that saved nine”50 refers to a change of heart by one

43
Strauss, Common Law Constitutional Interpretation 63 U. of Chic. L. Rev. 877, (1996)
44
Sunstein One Case at a Time, Minimalism on the Supreme Court (1999); Farber,
Frickey and Eskridge, Constitutional Law, 2nd Ed. P.126.
45
Holmes, Codes and the Arrangement of the Law, 44 Harv. L. Rev. 725 (1931)
46
Hart and Sachs, Legal Process, Foundation Press (199 ); Cardozo, The Nature of the
Judicial Process New Haven, Yale University Press, 1921.
47
Monaghan, Stare Decisis and Constitutional Adjudication 88 Columbia L. Rev. 723
(1988)
48
Wechsler, Toward Neutral Principles of Constitutional Law 73 Harv. L. Rev. 1 (1959)
49
In the common law tradition, the judge has the ability to make law. This fact lends
prestige to the office of judge, which is to be distinguished from the judge in the civil law
tradition, where the judge is seen only as a functionary whose function is interpreting the code,
which is viewed as an uncomplicated, mechanical process. See Clark, An Introduction to the
Legal Profession in Spain 1988 Ariz. J. of Inter. and Comp. L. Rev. 1 (1988) Arguably, the
process of appointment of a federal judge involving the President and the Senate adds legitimacy
to that law-making function.
50
Friedman, Switching Time and Other Thought Experiments: The Hughes Court and
Constitutional Transformation 142 U. Pa. L. Rev. 1091 (1994)

10
Justice that reversed two lines of authority: the Commerce Clause51 and Substantive Due
Process,52 and, so the controversial story goes, saved the Supreme Court from destruction.
Another famous overruling occurred when the Court overruled Plessey v. Fergeson53 in Brown v.
Board of Education 54. History appears to have judged this departure from the rule of precedent as
one of the greatest moments in the Court’s history. The most exhaustive statement of the need for
adherence to precedent in the Court’s history was Justice O’Connor’s opinion in the Casey case55
wherein she essentially states that her principle reason for affirming the Constitutional right to an
abortion is adherence to state decisis.56
Doctrinal law is what the lawyer or scholar reaches for almost by instinct when asked a
novel question of Constitutional (or, indeed, any) law. Recent Constitutional precedent from the
Supreme Court is bedrock. If the questioner is inquiring into the constitutionality of, for instance
a university affirmative action plan to assist minority admissions, the lawyer asks when the Court
last addressed the affirmative action issue and then upon finding Adarand, asks how the case
applies to the question asked. A similar methodology will be followed by any lower court, state
or federal. Most of the other originalist modes described are engaged in at the Supreme Court
level only. The rest of us plebians are relegated to parsing the pearls of wisdom that descend
upon us from the Supreme Court.57

B. THE EXTRINSIC MODES

Two modes of interpretation that have had sufficient influence to be included herein are
solicitude for the unfortunate and natural law. Their legitimacy as sources is more controversial
by virtue of their absence from the text. Others would argue that the Framers clearly drew on
these strains of thought in their drafting. Of course many other modes could compete here for

51
NLRB v. Jones and Laughlin Steel Corp 301 U.S. 1 (1937) (approving the Wagner Act
as an appropriate exercise of power under the Commerce Clauses)
52
West Coast Hotel Co. v. Parrish 300 U.S. 379 (1937) (upholding a state minimum wage
for women statute against a substantive due process challenge)
53
163 U.S. 537 (1896)
54
347 U.S. 483 (1954) (Some might suggest that technically there was no overruling.)
55
Planned Parenthood of Southweastern Pa. v. Casey 505 U.S. 112 (1992)
56
Her characteristically lengthy and pretentious opinion begins with, “Liberty finds no
refuge in a jurisprudence of doubt.” She then laboriously reviews the history of stare decisis in
the Court including the cases mentioned in the text. After completing that history she disregards
the trimester system of Roe and substitutes her own “undue burden test.”
57
Indeed, it was this lack of precedent that cause such consternation over the Court’s
intrusion into the 2000 presidential election controversy in Bush v. Gore 121 S.Ct. 525 (2000)

11
attention including libertarianism and economics. These two are chosen because their long term
influence on the current body of Constitutional doctrine remains strong.

V. Solicitude for the Unfortunate

For de Tocqueville,58 the American sense of equality was “ardent, insatiable, incessant
[and] invincible.”. He attributed it as arising from the equality of conditions that the settlers
found upon arriving in this new land. He also felt that equality was a natural tendency in a
democratic state where the franchise is widely shared. In addition, in a common law system each
litigant before a court is treated equally and the system of precedent dictates that similar cases
generate similar results regardless of the identity of the parties. Finally, Christian doctrine taught
that all human beings are children of God and that even the most degenerate are loved by God
and could achieve salvation through repentance. A very different state of affairs existed in the
colonists’ home-lands, where an aristocracy continued to demand the privileges they commanded
in feudal days and the animosity to the English King during the period leading to the Revolution
sprang from these feelings.
Surely, the Constitution ratified the status quo existence of slavery; but just as surely the
accommodation was not comfortable and a sizable group of abolitionists constantly raised the
slave issue. The slavery controversy, the Civil War, and the post Civil War amendments were
logical results of this sense of equality. Indeed, the Bill of Rights protections of speech, religion
and home, and against governmental overreaching though the criminal process insures equal
treatment before the law.
The twentieth century has witnessed political movements in favor of women’s suffrage,
civil rights, women’s rights, and more recently in favor the disabled, homosexual, and the
immigrant. Indeed the continuous immigration guarantees a new group reminding the country
about its commitment to equality.
The post-New Deal Court has been especially responsive to claims of harm visited by
overreaching majorities59 . Beginning with the Carolene Products footnote60, the Court has shown
a special solicitude for the claims of minorities.61 Certainly the Warren Court embraced equality

58
De Tocqueville, Democracy in America tr. by Henry Reeve (New York, A Bantam
Classic, 2000) p. 619. (De Tocqueville was a french intellectual who extensively toured the
United States in the 1830's and wrote a prescient social commentary which continues to be much
quoted. He was also well aware that this equality did not extend to the slaves or to the Indians.)
59
Ely, Democracy and Distrust: A Theory of Judicial Review, pp 88-103 (1980)
60
United States v. Carolene Products Co., 304 U.S. 144 (1938) fn 4.(“prejudice against
insular and discrete minorities”)
61
Gunther, Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a
Newer Equal Protection 86 Harv. L. Rev. 1 (1972); cf. Western. The Empty Idea of Equality 95
Harv. L. Rev. 537 ( 1982); Chemerinsky, In Defense of Equality: A Reply to Professor Western

12
principle and applied it expansively. The Equal Protection Clause of the Fourteenth Amendment
was interpreted to protect the poor,62 the welfare recipient,63 the food stamp recipient,64 hospital
patients,65the illegitimate,66 the alien,67 and illegal immigrants68. The Burger and Rehnquist
Courts have continued the trend protecting the mentally ill,69 and the homosexual.70
The Due Process Clause likewise has a strain of cases demonstrating a solicitude for the
outcast and the downtrodden. Goldberg v. Kelley71 protected welfare recipients from the
overreaching discretion of bureaucrats. Due Process also examined school suspensions,72

81 Mich. L. Rev. 575 (1983)

62
Harper v. Virginia Board of Elections 383 U.S. 633 (1066) (invalidating the poll tax);
Douglas V. California 372 U.S. 353 (1963) (sate must pay for the appellate transcript for the
indigent)
63
Shapiro v. Thompson 394 U.S. 618 (1969) (invalidating the durational residency
requirement as a pre-condition to welfare eligibility)
64
U.S. Dept of Agriculture v. Moreno 413 U.S. 528 (1973) (invalidating the exclusion of
households that have an unrelated member)
65
Memorial Hospital v. Maricopa County 415 U.S. 250 (1974) (invaliding a one year
residency requirement to receive non-emergency care at a county hospital)
66
Levy v. Louisiana 391 U.S. 68 (1968) (invalidating a limitation on illegitimates form
suing for wrongful death of the mother)
67
Graham v. Richardson 403 U.S. 365 (1971) (invalidating a limitation in state’s welfare
program excluding aliens)
68
Plyler v. Doe 457 U.S. 202 (1982) (Invalidating the exclusion of the children of illegal
immigrants from public school.)
69
City of Cleburne v. Cleburne Living Centers 473 U.S. 432 (1985) (overturning the
denial of a special use permit for a group home for the “insane or feeble-minded”)
70
Romer v. Evans 517 U.S. 620 (1996) (invalidating a state constitutional amendment that
prohibited the protection of the civil rights of homosexuals)
71
397 U.S. 254 (1970) (requiring a hearing prior to the termination of welfare)
72
Goss v. Lopez 419 U.S. 565 (1975) (imposing a right to be heard)

13
 termination of parental rights,73 parole revocation,74 revocation of prison good time credits,75
evictions procedures,76 wage garnishment,77 and involuntary commitment.78
Certainly, the cases interpreting the Fourth, Fifth, Sixth, and Eighth Amendments show a
solicitude for the unfortunate as well. Gideon v. Wainwright79 interpreted the Sixth Amendment
to require the state to pay the cost of legal representation of indigents in criminal cases. The
motion to suppress illegally seized evidence required by the Fourth Amendment.80is frequently
used to free drug users and dealers (who are often guilty). The Eighth Amendment assures that
sentences in criminal cases do not become irrational and overly punitive.81
The right of free speech is often invoked by the outcast. Abrams v. United States82
presented the Court with an early challenge to the 1917 Espionage Act by five avowed “rebels,
revolutionaries, anarchists”, whom Holmes in dissent characterized as “unknown” men with a
“silly” leaflet. The First Amendment was also invoked to protect Viet Nam protesters,83

73
Santosky v. Kramer 455 U.S. 745 (1982) (clear and convincing evidence)
74
Morrissey v. Brewer 408 U.S. 471 (1972)
75
Wolff v. McDonnell 418 U.S. 539 (1974)
76
Greene v. Lindsey 456 U.S. 444 (1982) (posted notice insufficient for eviction). See
also Lindsey v. Normet 405 U.S. 56 (1972) (approving limitation on counterclaims in an eviction
action)
77
Snaidach v. Family Finance Corp. 395 U.S. 337 (1969) (adversary hearing required for
the issuance of provisional remedies from a court)
78
Addington v. Texas441 U.S. 418 (1979) (imposing a standard of clear and convincing
for involuntary commitments). See also O’Connor v. Donaldson 422 U.S. 563 (1975) (state has a
duty to treat those involuntarily committed)
79
372 U.S. 335 (1963); see Lewis, Gideon’s Trumpet
80
Mapp v. Ohio 267 U.S. 643 (1961) (Fourth Amendment exclusionary rule applies to the
states)
81
Solem v. Helm 463 U.S. 277 (1983) (Court, 5-4, reverses a state court sentence of life
without the possibility of parole for uttering a bad check of $100, under a recidivist statute)
82
250 U.S. 616 (1919)
83
United States v. O’Brien 391 U.S. 367 (1968) (draft card burner); see also Texas v.
Johnson 491 U.S. 397 (1989) (flag burners); R.A.V. v. City of St. Paul 505 U.S. 377 (1992)
(cross burners).

14
Klansmen84, Hari Krishnas,85 rock musicians86 and other dissidents.87 The Free Exercise Clause
also protects the practitioners of religions that are out of the mainstream.88
Finally, the out-of-state resident, while perhaps not downtrodden like many of the other
members of this group, is politically powerless and thus qualifies for consideration under a
category that is concerned with failure of the electoral process.89 Protection is afforded by the
Dormant Commerce Clause and the Privileges and Immunities Clause. The plaintiff in Healy90 was
an out-of-state milk producer who was forced by Massachusetts to subsidize struggling in-state
producers. The Court protected the plaintiff against a discrimination that he was powerless to
change. Similarly, the Court protected the out-of-state shrimper in Toomer v. Witsell91

VI. NATURAL LAW

The Preamble to the Constitution states the premises upon which the Framers relied,
namely that they were attempting “to form a more perfect union, establish justice, insure domestic
tranquility, provide for the common defense, promote the general welfare and secure the blessings

84
Brandenburg v. Ohio 395 U.S. 444 (1969) (mere advocacy-ok)
85
International Society for Krishna Consciousness, Inc. v. Lee 505 U.S. 672 (1992)
(airport solicitation)
86
Ward v. Rock Against Racism 491 U.S. 781 ( 1989) (sound limitations in Central Park
approved )
87
West Virginia Bd. Of Education v. Barnette 319 U.S. 624 (1943) (conscientious
objectors during World War II)
88
Wisconsin v. Yoder 406 U.S. 205 (1972) (exemption form mandatory high school for
Old Order Amish); Employment Division, Department of Human Resources v. Smith 494 U. S.
872 (1990) (denial of exemption from peyote prohibition form members of the Native American
Church); Church of the Lukumi Babalu Aye, Inc. v. Hialeal 508 U.S. 520 ( 1993) (exemption
from ban on animal sacrifice)
89
Carolene Products n. 4 supra
90
West Lynn Creamery, Inc. v. Healy 512 U.S. 186 (1994) See generally, Regan, The
Supreme Court and State Protectionism: making Sense of the Dormant Commerce Clause 84
Mich L. Rev. 1091 (1986)
91
334 U.S. 385 (1948) ( invalidating a differential tax: $25 for residents and $2500 for
non-residents)

15
of liberty”92 The Framers were well-schooled in the writings of John Locke. The drafting of the
Constitution had much in common with Locke’s social compact which, according to Locke, was
preceded by a state of nature, where human beings lived in “a state of perfect freedom to order
their actions and dispose of their possessions and persons as they think fit... without asking leave.93
Further many of the early settlers were deeply religious Christians who were influenced by the
thinking Aristotle, Aquinas94 and Luther, whose thought began with God’s love for every
individual. By using one’s reason and thinking about human nature, one can develop certain
conclusions about individual freedom, dignity and equality.95 These create certain minima that
governments cannot transgress.96 Rights, privileges and immunities become limitations on
governmental power. The Ninth and Tenth Amendments make explicit the notion that the people
have not ceded all power to the government that they were establishing. The most cited catalogue
of these rights is in Corfield v. Coryell97

92
See also Declaration of Independence: invoking the “laws of nature and nature’s God”
the following truths are “self-evident”: “that all men are created equal; that they are created by
their Creator with certain unalienable rights; that among these are life, liberty and the pursuit mof
happiness; that, to secure these rights, governments are instituted among men, deriving their
opwer form the consent of the governed...”
93
Locke states that “in the state of nature” all men have “perfect freedom to order their
actions and dispose of their possessions and persons as they see fit within the bounds of nature,
without asking leave, or depending upon the will of any other man.” Second Treatise on
Government Macpherson ed. (Indianapolis, Hackett Publishing Co., 1980) p. 8.
94
Aquinas stated that “every law framed by man bears the character of a law exactly to the
extent to which it is derived from the law of nature.” quoted in Russell, A History of Western
Philosophy New York, A Touchstone Book, 1945, p.623.
95
Ambrosio, A Moral Appraisal of Legal Education: A Plea for a Return to Forgotten
Truths 22 Seton Hall L. Rev 1177 (1992); Blumenson, Who Counts Morally 14 J. of Law and
Religion 1 (1999-2000)
96
The Bill of Rights itself protects natural law rights including speech, religion,
conscience, home and person, property, self protection, subject only to constraints that are
general and widely publicized.
97
“Protection by the government; the enjoyment of life and liberty, with the right to
acquire and possess property of every kind, and to pursue and obtain happiness and safety;
subject nevertheless to such restraints as the government may justly prescribe for the general
good of the whole. The right of a citizen of one state to pass through, or to reside in any other
state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit
of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the
state; . . . and an exemption from higher taxes or impositions that are paid by the other citizens of

16
 Explicit acceptance of natural law by the Court was more common in early years. In
Calder v. Bull98, Justice Chase rejected the “omnipotence” of legislative authority, citing the
“purposes for which men enter into society will determine the nature and terms of the social
compact.” In Murray’s Lessee,99 the Court invoked notions from the Magna Carta to discern the
meaning of the due Process Clause. In Palko v. Connecticut100 the Court looked to “principle[s]
of justice so rooted in the traditions and conscience of our people as to ranked as fundamental.”
In Poe v. Ullman101, Justice Harlan dissenting defined liberty as a “rational continuum” which
includes a “freedom from all substantial arbitrary impositions and purposeless
restraints.”Likewise, Justice Fortas invoked the Ninth Amendment to protect unenumerated
rights that are “fundamental.”in Griswold.102 Indeed the Court endorsed the existence of
fundamental rights and liberty interests in Glucksberg.103
The claim that natural law has an appropriate place in the lexicon of interpretation
methodologies is highly contentious, primarily because it may be a primary vehicle by which
judges can inject their personal predilections into the law. Natural Law has never recovered from
the scathing attack it received form Justice Black in his dissenting opinion in Adamson104, calling
it an “incongruous excrescence.” It continues to be disfavored by the Court and the academy, but

the state; . . . the elective franchise, as regulated and established by the laws or constitution of the
state in which it is to be exercised. These, and may others which might be mentioned, are,
strictly speaking, privileges and immunities”.
98
3 Dall. (3U.S.) 386 (1798) (rejecting a challenge to an act of the legislature which set
aside a judicial decree.
99
Murray’s Lessee v. Hoboken Land and Improvement Co. 59 U.S. 272 (1865)
100
302 U.S. 319 (1937) (rejecting an attempt to apply Sixth Amendment standards in a
state court)
101
367 U.S. 497 (1961) (rejecting a challenge to anti-birth control statute as not ripe.)
102
Griswold v. Connecticut 381 U.S. 479 (1965)
103
Washington v. Glucksberg U.S. (1997) (approving ban on physician-assisted suicide)
104
Adamson v. California 322 U.S. 46 (1947) (Frankfurter-Black debate about
incorporation)

17
continues to be the best explanation for privacy105, procedural due process106 and school
desegregation.107

VII. SUPER-RATIONALISM

Super-rationalism is a mode of judicial review where the Court retraces the legislative
process108 that led to the enactment of the statute under review. The state or local government
whose decision is under review assumedly perceived a problem: too many automobile
accidents109, the high cost of pensions, or too many unqualified makers of replacement eye-
glasses. The alleviation of the problem is the legislative goal or purpose.110 Upon further study, the
legislative body typically finds a variety of possible solutions involving different winners and
losers. Some solutions may require high expenditures; some may require the discharge of
government workers; some may conflict with other important goals. Many of the above-discussed

105
Griswold v. Connecticut 381 U.S. 479 (1965) (citing the emanations and the
penumbras of the bill of rights Justice Harlan’s dissent in Poe v. Ullman 367 U.S. 497 (1961)
where he described due process as “built upon the postulates of respect for the liberty of the
individual.”
106
Marshall v. Jerrico, Inc 446 U.S. 238 (1980) due process concerns itself with the
“promotion of participation and dialogue in by the affected individuals in the decision-making
process.”see also Clark, Ingraham v. Wright and the Decline of Due Process 12 Suff. L. Rev.
1151 (1978)
107
Brown v. Board of Education of Topeka 347 U.S. 483 (1954) (segregation harms the
hearts and minds of negro children)
108
Super-rationalism also reviews administrative rulings and decisions and individual
decisions, mostly decided by state and local administrators. E.g.: Washington v. Davis (whether
the choice a particular examination as a prerequisite for entry into the police department was
justified); County of Sacramento v. Lewis 523 U. S. 833 (1998) (reasonableness of a high speed
police chase)
109
However, even at this early stage, uncertainty creeps into the process. First, the
statement of the problems will obviously vary: too many automobile accidents may have
unnumerable restatements: too many cars; too little safely inspection of cars, too few (or too
many ) traffic controls; too much alcohol etc.
110
Here again uncertainty: The vote for any particular solution is going to be the
aggregation of the widest varieties of reasons including party affiliation, past debts, lobbyists,
constituencies etc. Super-rationalism always seems to assume a unified cleanly-defined,
legislative intent.

18
difficulties of finding the intent of the Framers apply here as well; this inquiry investigates the
intent of a legislative body with respect to a particular enactment.111 Again, it often leads to an
uncertain factual inquiry using widely varied evidence including expert opinion, legislative
findings, and journalism.
Once the legislative purpose has been determined super-rationalism may go in either of
two directions; balancing or means-ends review.112 In means-ends review, the Court attempts to
assess the relationship between the means and the ends to discover if the degree of proximity
meets the required test. In balancing, the interests vindicated by the enactment (increased traffic
safety) is balanced against the interest of the opponent of the measure (unencumbered passage).
Lastly, the Court often establishes a standard for judging the appropriateness of a
legislature’s choice of means. This judgment may be used independently, such as the requirement
that limitations on speech in a public forum be reasonable, or in combination with other tests,
such as the requirement that the use of race in an affirmative action plan be narrowly tailored, as
well as justified by a compelling governmental interest.

A. MEANS-ENDS REVIEW

This method, common in First and Fourteenth Amendment cases, typically has two
steps:(1) a discovery, a definition, and an analysis of the governmental purpose113 (2) an
assessment of whether the purpose sought in step one and the means used are sufficiently closely
related to meet a test which varies in its strictness with the Constitutional principle invoked. Often

111
Chief Justice Marshall warned about the dangers of inquiring into legislative motives in
Fletcher v. Peck 10 U.S. (6Cranch.) 87 (1810), fearing that the inquiry itself would be
inappropriately intrusive and wondering what the Court should do when it finds “impure
motives.” Bhagwat, Purpose Scrutiny in Constitutional Analysis 85 Cal L. Rev. 297 (1997);
Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Motive 1971 Sup
Ct Rev. 95; Eisenberg, Disproportionate Impact amd Illicit Motives:Theories of Costitutional
Adjudication 53 N.Y.U. L. Rev. 36 (1977). See also Scalia concurring in Church of the Lukumi
Babalu Aye, inc. v. City of Hialeah 508 U.S. 520 (1993)
112
It may be protested that this mode does not belong on a level equal to those already
discussed- that it is merely instrumental in pursuit of a more fundamental base of decision such
as free speech or the prevention of discrimination. However this mode, while often tied to
another protection or mode , seems rapidly to drift away from its Constitutional mooring. As
such it deserves independent treatment as a separate mode of interpretation, although the author
accepts the fact that this opinion places him in a distinct minority.
113
Tussman and tenBrock, The Equal Protection of the Laws 37 Calif. L. Rev. 341 (1949)
(discussion of overinclusive and underinclusive classifications)

19
the inquiry stops at the first step because the Court simply finds the legislative goal to wanting.114
Equal protection imposes a strictness level review, utilizing one of three standards:
rational,115.important or compelling. Rational basis equal protection adds a third step, assessing
the overall reasonableness of the means.

1. Purpose Review116
i. Rationality
The Court’s most deferential posture asks whether the state’s interest is rational, placing
the burden is upon the opponent of the state to prove irrationality. Examples of this level of
review include the old equal protection cases, usually challenging an economic regulation. In
Dukes117, the Court found rational the interest of New Orleans in “enhancing the vital role of the

114
E.g. Loving v. Virginia 388 U.S. 1 (1967) (state’s interest in preventing the corruption
of blood and a mongrel race are simply not compelling to justify an anti-miscegenation statute.)
115
The Court’s formulation of the test varies considerably from case to case: instance in
Royster Guano Co. v. Virginia 253 U.S. 412 (1920) the court required that every classification be
“reasonable, not arbitrary and must rest upon some ground of difference having a far and
substantial relation to the object of the legislation, so that all persons similarly circumstanced
shall be treated alike;” in Lindsley v. Natural Carbonic Gas Co 220 U. S. 61 (1911), the opponent
of a classification bore the burden of showing it to be “essentially arbitrary.” Compare F.C.C. v.
Beach Communications, Inc., 508 U.S. 307 (1993) (exempting cable television systems form
local franchising requirements where a satellite dish serves a building or buildings that are
commonly owned or managed) the Court invoked judicial restraint to limit judicial intervention
“no matter how unwisely we may think a political branch has acted.” The opponent of a
classification must “negate every conceivable basis that might support it.” The absence of a
legislative basis for a classification has “no significance.”
116
Purpose inquiry is also in the search for invidious discriminatory motive. For instance,
under equal protection, for an invidious discrimination to be so labeled it must have been
motivated by a desire to treat the disfavored group differentially. See Washington v. Davis 426
U.S. 229 (1976) (differential impact insufficient to invalidate the use of a particular test as a
precondition to entry into the police department.); Geduldig v. Aiello 417 U.S. 484 (1974)
(exclusion of pregnancy benefits form state disability insurance policy was not anti-female).
Purpose to favor in-state residents is relevant to a commerce clause challenge. Kassel v.
Consolidate Freighrways Corp. (governor’s statement in defense of the bill under review,
prohibiting double trailers, indicated a parochial purpose at the expense of out-of-staters);
legislation that is directed at a particular religion is invalid under the Free Exercise Clause.
Church of the Lukumi Babalu Aye, Inc. v. Hialeah 508 U.S. 520 (1993) (animal sacrifice)
117
New Orleans v. Dukes 427 U.S. 297 (1976) (attacking an ordinance that excluded
pushcart vendors form the Latin Quarter, but then exempting form the prohibition all who had
eight years or more of tenure)

20
French Quarter’s tourist-orientated charm.” In Murgia118, the Court found rational the state interest
in “assuring physical preparedness of its uniformed officers.” In Beazer,119 the Court found
rational the fear of drug use on the job. In Fritz120, the Court accepted the avoidance of wholesale
receipt of double pension benefits and thus cost cutting as rational. Due Process reviews
economic legislation, using the same test.121 The states interest in police readiness, a drug-free
work force or
fiscal responsibility certainly meet the test of rationality.

ii. Strict Scrutiny

The strictest is the compelling governmental interest standard. It is used in the racial122,
ethnic and other124 discrimination cases and a hodge-podge of other “fundamental interest”
123

equal protection cases,125 where, for reasons of Constitutional interpretation, the Court’s

118
Massachusetts Board of Retirement v. Murgia 427 U.S. 307 (1976) ( challenging a
mandatory retirement at age 50 for state police officers.)See also Vance v. Bradley 440 U.S. 93
(1979) (mandatory retirement of foreign service officers)
119
New York City Transit Authority v. Beazer 440 U.S. 569 (1979) ( approving the
exclusion of methadone users from employment with NYTA
120
U.S. Railroad Retirement Board v. Fritz 449 U.S. 166 (1980) (attacking a
Congressional overhaul of the Pension system for railroad workers, especial those who later
became eligible of Social Security benefits)
121
Williamson v. Lee Optical Co. 348 U.S. 483 (1955) (limiting the eye-glasses business
to physicians; “[i]t is enough that there is an evil at hand for correction, and that it might be
thought that a particular legislative measure was a rational way to correct it.”)
122
E.g. Palmore v. Sidoti 466 U.S. 429 (1984) (reversing the withdrawal of child custody
to a Caucasian mother because she married an Africa-American); Richmond v. J.A.Crossen Co.
488 U.S. 469 (1989) ( invalidating affirmative action plan for sub-contractors on city funded
construction)
123
Rice v. Cayetano 120 S. Ct. 1044 (2000) (Hawaii’s limitation on the right to vote in an
election for Trustees of the Office of Hawaiian Affairs to native Hawaiians cannot survive strict
scrutiny)
124
State alienage discrimination (Graham v. Richardson 403 U.S. 365 (1971)) and early
discrimination against illegitimate children cases (e.g., Ley v. Louisiana 391 U. S. 68 (1968))
also used strict scrutiny.
125
Voting (Kramer v. Union Free School District No. 15 395 U.S. 621 (1969)),
representational parity (Reynolds v. Sims 377 U. S. 533 (1964), running for office (Williams v.

21
protective instincts are so high that the Court approaches the state’s interference with a high
degree of skepticism. The majority in Roe v. Wade126 imposed the standard on state interference
with the fundamental due process right to an abortion, but then seems to have abandoned the test
in favor of a “significant obstacle”127 or “undue burden.”128 The Court occasionally uses the
language of strict scrutiny in facial discrimination cases under the dormant commerce clause.129
Finally, the Court has rejected earlier cases that held that strict scrutiny was appropriate for Free
Exercise cases.130 States almost never can satisfy the burdens of strict scrutiny.131
iii. Middle-level Scrutiny
A newer middle level scrutiny appears to have currency in the gender cases. This level
asks whether a statutory classification “serves important governmental objectives and must be
substantially related to the achievement of those objectives.”132 In the VMI case133, the Court felt

Rhodes 393 U.S. 23 (1968)), access to the appellate criminal process (Douglas v. California 372
U.S. 353 (1963), marriage (Turner v. Salfey 482 U.S. 78 (1987))and child rearing (Troxel v.
Granville 120 S.Ct. 2054 (2000)), travel (Shapiro v. Thompson 394 U.S. 619 (1969) are all
fundamental interests that may require strict scrutiny.
126
410 U. S. 113 (1973)
127
Akron v. Akron Center for Reproductive Health 462 U.S. 416 (1983)
128
Planned Parenthood of Southeastern Pa. V. Casey 505 U.S. 833 (1992)
129
Oregon Waste Systems, Inc. v. Dep’t of Environmental Quality 511 U.S. 93 (1994)
(differential fees for the disposal in in-state and out-of-state garbage requires the “strictest
scrutiny”) West Lynn Creamery, Inc. v. Healy 512 U.S. 186 (1994) (state’s tax and subsidize
plan was to give local producers an advantage over out-of-staters)
130
Employment Division, Dept. of Human Resources v. Smith 494 U.S.872 (1990) (Indian
ritual using peyote; compelling interest test creates too many exemptions from civic obligations)
131
With the notable exception of the World War II Japanese internment cases. Korematsu
v. United States 323 U.S. 214 (1944); Hirabayashi v. United States 320 U.S. 81 (1943)
132
Craig v. Boren 429 U.S. 190 (1976) (invalidating a state minimum age for drinking law
that set different ages for males and females)
133
United States v. Virginia 518 U.S. 515 (1996) (challenge to all-male military school.)
The reasoning of this case, like so many others is confusing. The State offers as a justification for
military-style colleges the production of “citizen-soldiers.”Logic would seem to label the use of
“adversatives” (disrespect and harassment) as a means. The exclusion of women would be
examined to judge the importance of the exclusion of women to the successful use of that means.
The Court however, discusses independent justifications for the exclusion of women: diversity
and the preservation of the use of adversatives. With respect to the first the Court seems to find it

22
that the state’s interest in harsh educational methods in military school did not meet the test, while
preventing teenage pregnancy134, flexibility in dispatching military personnel135, and the
difficulties in distinguishing between real and fraudulent non-marital fathers did136.
This is the prevailing test in illegitimacy discrimination cases.137A similar test judges
governmental restrictions on non-verbal communication138 and commercial speech.139 The
Establishment Clause requires state to religious schools to have a “secular legislative purpose.”140
The Takings clause requires that exactions be for “legitimate state interests.”141 The Court found a
city’s desire to zone out adult theaters to be “substantial.”142Under the privileges and immunities
Clause, the reason for discriminating against out-of-staters must be “substantial”.

2. Relational Assessment

justifiable in theory, but unproved in the facts of this case. With respect to the second, the Court
seems to fail to closely examine whether the state interest in prohibiting the physical violence
involved in adversatives to occur between the sexes. Instead it falls back upon the rhetoric of
discrimination , citing the need for female citizen-soldiers as well as male. This admixture of the
two parts of rationality review is common.
134
Michael M. v. Superior Court of Sonoma County 450 U.S. 464 (1981) (challenge to
male-only definition of perpetrator in statutory rape statute)
135
Rostker v. Goldberg 453 U.S. 57 (1981) (challenge to all-male draft)
136
Parham v. Hughes 441 U.S. 347 (1979) (statute granting non-marital mothers, but
denying such fathers the right to sue for wrongful death of the child). Compare Caban v.
Mohammed 441 U.S. 380 (1979) (invalidating statute denying the right to non-marital fathers,
but not to such mothers to block adoptions)
137
Lalli v. Lalli 439 U.S. 259 (1978) ( approving the exclusion of some illegitimate
children from intestate succession)
138
United States v. O’Brien 391 U.S. 367(1968) (draft card burning)
139
Central Hudson Gas and Electric Corp. v. Public Service Commission 447 U.S. 557
(1980) (invalidating a ban on ads promoting the use of electicity)
140
Lemon v. Kurtzman 403 U.S. 602 (1971) (striking down state salary supplement to
teachers at private schools)
141
Dolan v. City of Tigard 512 U.S. 374 (1994) (invalidating the City’s exaction of the
dedication of land for a bicycle path in return for a building permit)
142
Renton v. Playtime Theatres, Inc. 475 U.S. 41 (1986)

23
 Next, the Court often proceeds to a judgment about the means ends fit. The equal
protection cases have three levels of means scrutiny corresponding to ends scrutiny: strict
scrutiny requires the means to be “necessary”143to achieve the legislative goals; middle level
requires the means to be “substantially related;”144 rationality review requires opponents to
establish the negative: means must be “without any rational basis,”145 or, perhaps, “irrelevant” to
the state’s purpose.146 For instance in Hodgson v. Minnasota147 the reviewed a statute that
required a minor female to obtain the consent of both parents as a precondition to obtaining an
abortion. The court found the State’s interest in assuring that the minor get sufficient advice and
deliberation before making this decision legitimate. However, after reviewing findings of the
district court about the difficulties that such a requirement would create in families that are
dysfunctional and the frequency of such dysfunctionality , the Court declared that there was no
rational relationship between the legitimate legislative goal and the means chosen by the
legislature to vindicate that goal.
A similar “required degree of connection” or a “nexus” is required between the exactions
imposed by a municipality and the negative impact of the proposed development in Takings
Clause cases.148 This method, used under equal protection, due process, the dormant commerce
clause, freedom of speech, free exercise and establishment clause, applies labels that seems
imprecise, subjective and talismanic.. The term reason has a rich history in western philosophy.

143
In re Griffiths 413 U.S. 717 (1973) (exclusion of aliens form the bar is invalid)
144
Craig v. Boren, supra
145
Lindsley, supra This test is usually death to the opponents of governmental action, but
with some notable exceptions: in Cleburne v. Cleburne Living Centers 473 U.S. 432 (1985) the
Court found a variety of reasons for denying a special use permit to a group home for the
mentally disabled unrelated to any legitimate zoning interest; in Plyler v. Doe 457 U.S 202
(1982) excluding the children of illegal aliens from public schools was insufficiently related to
deterring illegal entry to be deemed rational; Romer v. Evans 517 U.S. 620 (1996) ballot
initiative that amends the Colorado constitution to prohibit civil rights law that protect
homosexuals is unrelated to a state interest in associational freedom
146
United States Department of Agriculture v. Moreno 413 U. S. 528 (1973) (invalidating
a Food Stamp regulation that excluded household that Housed an unrelated member)
147
497 U.S. 417 (1990)
148
Dolan, supra

24
For Aristotle it meant practical wisdom.149 For Dewey150 only practical results mattered.
Descartes151 insisted that reason should be coldly logical. The results are often hard to square.
Why is remediating past discrimination compelling152 and creating role models for grammar
schoolers not153? Why is there a compelling interest in a forty-eight hour waiting period before an
abortion154 but not in spousal consent to an abortion155

2. Means Analysis

As stated, equal protection rational basis scrutiny adds yet a third component, assessing the
reasonableness of means.156 The Court engages in means analysis in a wide variety of other areas

149
Aristotle, Nichomachean Ethics, Book VI, ch 5. The habits of practical wisdom include
sympathetic detachment, calculating costs, narrowing alternatives, applying the lessons of
experience and considering future consequences. See Clark, Kronman’s The Lost Lawyer: A
Celebration of the Oligopoly of the Elite Lawyer (book review) 26 the Advocate 48 (1996)
150
Morality depends on the desirability of results. Dewey and Tufts, Ethics (New York,
Henry Holt and Co., 1908) p.209.
151
Descartes, Discourse on the Method of Rightly Conducting the Reason and Seeking for
Truth in the Sciences, in which the author begins with the Cartesian doubt of even his own
existence and then proceeds to prove his own existence, and God’s and then uses logic to build a
metaphysical and ethical system. 31Great Books of the Western World p.51 et seq (Chicago,
Encyclopedia Britannica, Inc., 1952)
152
Especially when the justification of an affirmative action plan is an act or pattern of
discrimination, often visited against some unknown minority in the past and whose harm is not
compensated, but whose harm is now used as a basis for bestowing some unsought windfall
benefit upon one whose only relationship to the original act of discrimination is that he or she
shares a racial, ethnic or gender similarity with the past victim. Similar arguments are made with
respect to the debate about reparations.
153
Wygant v. Jackson Board of Education 476 U.S. 267 (1986) (preference for more
junior African-Americans over more senior whites in a reduction in force among teachers where
the school found the need for minority role models)
154
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992)
155
Planned Parenthood v. Danforth 428 U.S. 52 (1976)
156
Village of Willowbrook v. Olech 120 S.Ct. 1073 (2000) (towns demand for a wide
easement as a condition to connecting to the town’s water supply was “irrational and wholly
arbitrary”); Bush v. Gore 121 S. Ct. 525 (2000) (state supreme courts ruling which ordered a
recount was so full of inconsistencies and contradictions so as to labeled irrational and thus to

25
as well. The Court judges the reasonableness of restrictions on speech in limited access public
fora. For instance, in Krishna Consciousness,157 the Court judged the reasonableness of a
solicitation prohibition in an airport. Citing Kokinda,158 the Court stated that the restrictions “need
only be reasonable: it need not be the most reasonable or the only reasonable limitation.” The
“least restrictive means” limitation on restrictions on speech in public fora is no longer
enforced.159 Restrictions on symbolic speech may be “no greater than essential.” Limitations upon
commercial speech may be “not more extensive than necessary...”160 Affirmative action plans and
limitations on picketing161 must “narrowly tailored.”162 Casey judges whether restrictions on the
abortion procedure are “undue burdens.”163 Lemon 164judges whether means “advance or inhibit
religion” or foster “excessive governmental entanglement” with religion. The fact that there are
“reasonable and adequate alternatives” to an in-town milk processing requirement invalidates
it.165“Reasonable alternative avenues of communication” were also important in Renton166 Under
the Camden167, non-residents cannot be targeted unless they are “a peculiar source of the evil at
which the statute is aimed.” Limitations on the right to refuse life saving treatments must be “at
least reasonably related to [the] promotion and protection” of the terminally ill patient.168 Often

violate equal protection)

157
International Society of Krishna Consciousness, Inc. v. Lee 505 U.S. 672 (1992)
158
United States v. Kokinda 497 U.S. 672 (1992) (sidewalk solicitation ban)
159
Ward v. Rock Against Racism 491 U.S. 781 (1989) (sound limitations on rock concert
in Central Park)
160
Central Hudson Gas and Electric Corp v. Public Service Commission 447 U.S. 557
(1980) (banning ads by utilities that promote the use of electricity)
161
Frisby v. Schultz 487 U.S. 474 (1988)
162
City of Richmond v. J.A. Croson Co. 488 U.S. 469 (1990) (percentage of subcontractor
work must go to minorities)
163
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992)
164
Lemon v. Kurtzman, supra
165
Dean Milk Co. v. Madison 340 U.S. 349 (1951) (Madison prohibits the sale of milk not
processed within five miles of the City)
166
Renton, supra
167
Camden, supra
168
Washington v. Glucksberg U.S. (1997) (validating anti-assisted suicide statute)

26
the Court stops the inquiry after this step-if the means used meets the test it is approved; if not,
it’s invalidated

What in the constitution justifies this inquiry? Perhaps it is the natural law formulations
that protect us against pointless and arbitrary constraints. An arbitrary constraint is one that is
pointless, that does nothing to advance the commonweal. But we are admittedly quite distant from
Marbury and the legitimacy of rationality assessment is dubious.

3. BALANCING

Balancing is a metaphoric term (because rights and interests do not have mass) which
defines the Constitutional issue as a question of competing values which must be identified,
valued and compared.169 It resembles rationality, discussed above, in that it identifies and
evaluates the governmental interest presented by a statute. However, it then identifies and
recognizes the legitimacy of an opposing interest, usually presented by a litigant Ultimately,
however, faced with two opposing legitimate interests, the Court must assign values to the
identified interests and choose one.170
.
Two examples of the methodology are Penn Central171 and Kassel172. In Penn Central, the
interest of the historical commission in preserving buildings of historical or architectural
significance is balanced against the investment expectations of the corporate owner of the
building housing a railroad station. In Kassel, the interest of the state of Iowa in traffic safety is
balanced against the inconvenience and expense to an interstate carrier of reconfiguring its double

169
The process seems very closely related to that of utilitarianism wherein Bentham pleads
for a unified definition of the term utility, fierce adherence to it and a “moral arithmetic” which
can guide the questioner to the result that will maximize pleasure and minimize pain.. Bentham,
Theory of Legislation, (from Cohen and Cohen, p.600)
170
Aleinikoff, Constitutional Law in the Age of Balancing 96 Yale L. J. 943 (1987);
Fallon Foward: Implementing the Constitution 111 Harv. L. Rev. 54 (1997); Kahn, The Court,
the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale L. Rev. 1
(1987)
171
Penn Central Transportation Co. v. City of New York 438 U.S. 104 (1978) (
challenging the prohibition against the construction of a fifty story glass tower above the station
because of its distinctive facade.
172
Kassel v. Consolidated Freightways Corp. 450 U.S. 662 (1981) (plurality opinion)
(challenge to the prohibition against double trailers on Interstate 80 in Iowa)

27
trailers in Iowa.173 First of all, there is, like apples and oranges174, no common currency for
comparison.175 Second, the governmental interest represented by the problems presented in the
cases (historical preservation and traffic safely)is too multifarious and diffuse to be able to be
reduced to a factor in a balance, not to mention the difficulties proof of such interests in the
process of litigation. Third, is the problem of cumulation. Most often the Court seems to consider
the governmental interest generally: not the interest in the Beaux Artes facade of a building in
New York City, but the interest of cities in general in historical preservation, or even more
generally, in zoning. The other side of the balance is usually articulated specifically: the
investment expectations of the owner of the building, focusing upon its particular circumstances
and balance sheet, and not the more general interest of investor expectations.176
The Court has used balancing in a wide variety of cases. Residential picketing requires a
balance between rights of free speech and privacy.177 Eliminating the undesirable secondary
effects caused by the presence of an adult movie theater justified zoning them out of residential

173
Dormant Commerce Clause often seem to require balancing. In the early case of
Cooley v. Board of Wardens 12 How. (53 U.S.) 299 (1851) the Philadelphia pilotage law was
viewed as the nature of the power being exercised: national or local. Pike v. Bruce Church, Inc.
397 U.S. 137 (1970) (a local packing requirement for cantaloupes invalidated because the “the
burden imposed on... commerce is clearly excessive in relation to the putative local benefits);
Southern Pacific Co. v. Arizona 325 U.S. 761 (1945) (state interest in traffic flow on streets
outweighed by railroads interest in interstate commerce); South Carolina State Highway
Department v. Barnwell Bros., 303 U.S. 177 (1938) (state limitation on the width of trucks
survives)
174
Pound, A Survey of Social Interests 57 Harv. L. Rev. 1 (1943)
175
Alienikoff, Constitutional Law in the Age of Balancing 96 Yale L. J. 943 (1987)
176
Takings and Contract Clause cases seem to be particularly common cases for the use of
this methodology. An early balancing case was Home Building and Loan Ass’n v. Blaisdell 290
U. S. 398 (1934) where the Court reviewed a debtor relief statute that halted foreclosures in the
depths of the Depression. While it is clear that this is exactly the type of law that the Contract
Clause was designed to prohibit, the Court, the Court invoked the “emergency” that the country
faced to allow the debtor relief. In Miller v. Scoene 276 U.S. 272 (1928), the Court stated that the
Takings Clause allowed the Virginia legislature to choose to protest property “of greater value to
the public,” in choosing to protect apple trees by destroying re cedar trees. In Keystone
Bituminous Coal Ass’n v. DeBenedictis 480 U.S. 470 (1987) the Coal Company had to give up
its rights to some of its coal to prevent subsidence damage. See also Eastern Enterprises v. Apfel
524 U.S. 498 (1998)
177
Frisby v. Schultz 487 U.S. 474 (1988) (flat ban on residential picketing) See also cases
involving the picketing of abortion clinics Madsen v. Women’s Health Center Inc 512 U.S. 753
(1994); Hill v. Colorado120 S.Ct (2000)

28
neighborhoods.178 Reducing the demand for gambling through an advertizing ban weighed
favorably against the casino owner’s right to commercial speech..179 The state’s interest in
preserving the two-party system and the integrity of the election process was sufficiently weighty
to justify an anti-fusion party statute.180 The notice and a post-termination hearing were sufficient
under the Due Process Clause when balanced against the difficulties and the expense in the SSI
disability programs.181 Assisted suicide statutes require a balance between the right to refuse
unwanted medical treatment and the state’s interest in preserving life.182 The legitimate interest of
a public figure against defamation must be balanced against the First Amendment interest in
fostering robust debate.183 The President’s need for privacy of communications with subordinates
must be balanced against the interests of the criminal courts in gaining access to information.184A
police officer’s use of deadly force is justified only in the case of the fleeing felon.185 Searches of a
student’s locker requires a balance of a student’s right to privacy and the school officials’ control
of the schools.186 In deciding that an incriminating statement made without Miranda warnings was
admissible to impeach a defendants credibility the Court balanced the needs to convict the guilty
against the interests of the Fifth Amendment.187
This slippery stuff presents the Court with an intellectual task which ultimately can not be
performed honestly and thus reduces itself to nothing less than a subjective judgment about
importance. Not only is it measuring the unmeasurable, but if it claims to take everything into

178
Renton v. Playtime Theatres, Inc 475 U.S. 41 (1986)
179
Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico 478 U.S. 328
(1986) (Validates limited gambling advertizing ban); Florida Bar v. Went for It, Inc 515 U.S. 618
(1995) ( thirty day direct mailing ban by lawyers to accident victims)
180
Timmons v. Twin Cities Area New Party 117 S. Ct. 1364 (1997)
181
Matthews v. Eldridge 424 U.S. 319 (1976) (termination of disability benefits)
182
Glucksberg, supra
183
New York Times Co. v. Sullivan 376 U.S. 254 (1964)
184
United States v. Nixon 418 U.S. 683 (1974) (Watergate tapes)
185
Tennessee v. Garner 458 U.S. 747 (1982)
186
T.L.O. v. New Jersey 469 U.S. 325 (1985); Vernonia School Dist. 47J v. Acton 515
U.S. 646 (1995) ( random drug test of high school athletes). Indeed all suspicionless highway
checkpoint cases require a “weighing of the gravity of the public concerns served by the seizure...
and the severity of the interference with individual liberty.” Rehnquist dissenting in City of
Indianapolis v. Edmonds 69 L.W. 4009, at 4014. (2000)
187
Harris v. New York 401 U.S. 222 (1971)

29
account the size of the record and the burden on the adjudicative process will expand
exponentially. What the Court really seems to be doing is .freely speculating upon the
consequences of one rule as compared to another. The state interest-individual interest is a bit
unfair to the individual unless the individual interest is generalized and if it is generalized, how
much generalizing is enough. In the balancing mode, the Court is simply replicating the job of the
legislature. The Constitution is reduced to a factor in the balance:188 “doctrinally destructive
nihilism189,” according to Justice Brennan. Much the same could be said about means-ends
analysis. It is vague and uncertain and completely divorced form the constitutional value that the
Court is supposedly vindicating.
On the other hand, perhaps balancing and rationality assessment is the best we can do. The
world is complex and as much as we like doctrinal purity and absolute rights, every constitutional
case presents a case of competing interests and courts can do no more than to exercise their
powers of practical reason to resolve and accommodate them.190 But then again what do we do
with Korematsu?191

D. CONCLUSION

Over the years academic critics have often suggested that the edifice described herein is
unprincipled, subjective and opportunistic. The most recent of these critics have belonged to a
diffuse school of thought called critical legal studies192. Many of theses critics, drawing inspiration
from the legal realists and others from Marxism, suggest that judicial decision-making is a

188
Dworkin, Taking Rights Seriously p. 194 (1977)
189
New Jersey v. T.L.O. 469 U.S. 325 (1985)
190
Indeed Holmes quotes Lord Mansfield advice to new judges to make judgments by
stating conclusions without stating reasons because the “judgment would probably be right and
the reasons certainly wrong.” Holmes, Codes and the Arrangement of the Law 44 Harv. L, Rev.
725 (1931). Farber, Frickey and Eskridge in Constitutional Law, Themes for the Constitution’s
Third Century (1993) at p. 126 suggest that the best approximation of what goes on may be
called practical legal studies: “Judges exercising judicial review must pay attention to the
language of our written Constitution, our traditions of constitutional exegesis, the competing
policymaking powers of the legislatures and executive branches of our federal and state
governments, the expectations of society in general and the legal community in particular,
prudential problems of implementation of rights and remedies, competing notions of American
individualism and community, and a host of other matters.”
191
323 US 81 (1943) (perfectly innocent Japanese-American citizens are forcibly deprived
of their homes, their jobs and families because military paranoia)
192
Kelman, A Guide to Critical Legal Studies (1987); Unger, The Criical Legal Studies,
(1986); Critical Legal Studies Symposium, 36 Stan. L. Rev. (1984)

30
political process, similar to the legislative process and judicial opinions are a mere smoke-screen
behind which a judge hides his own predilections. The background and education of most judges
will dictate their preference for the party whose interest advances the goals of the wealthy. The
feminist critics suggest that the framers had no commitment to their interests and thus the
Constitution itself is a deeply flawed document and to make matters worse contemporary
American values that find expression in Constitutional decisions are infected by the hegemony of
patriarchy193. Likewise the race critics note that the Constitution as written ratified the institution
of slavery and thus the Constitution’s concern for minority rights is weak and of very recent
vintage194.
Another strain of critical thought draws on the work of such literary critics as Stanley Fish.
By deconstructing the text of the Constitution,195 they suggest that the separation in time and
context between the Framer and the contemporary reader makes any transmission of original

193
E.g., West, Constitutional Skepticism 72 B.U.L.Rev. 765 (Constitution has minimal
value in protecting women because it ignores private aggregations of power); Mackinnon Toward
a Feminist Theory of the State (1991) (masculinity and maleness continue to be the referent for
claims of inequality)
194
E.g. Bell, Brown v. Board of Education and the Interest Convergence Dilemma, 93
Harv, L. Rev. 518 (Brown was finally decided as it was because integration would not threaten
the superior societal interests deemed important by middle and upper class whites): Crenshaw,
Reform and Retrenchment: Transformation and Legitimation in Antidiscimination Law 101
Harv. L. Rev. 1331 (1988) (the myth of racial neutrality of the legal system masks racism
submerged in popular white consciousness)
195
Cook, The Temptation and Fall of the Original Understanding, 1990 Duke 1163 (1989)
(“Deconstruction is an intellectual sword used against the evils of oppression and hierarchy that
are empowered by the unexamined political choices that limit our capacity to envision alternative
social arrangements”)

31
intent impossible.
Notwithstanding these critics, Marbury was correctly decided and once this assertion is
made, the next step is interpretation. The question is how.

32