Disagreement and Interpretation

For two decades, political commentators and legal academics have loudly bemoaned the trend toward restrictive definition of constitutional rights. Although the Constitution has not vanished, the Supreme Court has been narrowing rights in important areas such as abortion regulation, criminal procedure, religious freedom, and school desegregation. Much of this constriction has followed the expression of political opposition to earlier, more expansive judicial decisions.1 No matter what the Justices assert or believe about the legal justifications for recent limitations, it is possible that this opposition has been a significant consideration. The instinctive reaction of many observers, especially those with legal training, is to recoil at the thought of fundamental principles being diluted in response to popular pressure. This article tests this understandable reaction by asking directly whether federal judges should take political resistance into account when interpreting the Constitution. The instinct to condemn what the Supreme Court has referred to as "compromises with social and political pressures"2 is strong, but it is, at least superficially, at odds with aspects of our complex traditions.3 Many eminent jurists, including John Marshall, Oliver Wendell Holmes, and William Brennan, have emphasized that constitutional meaning should have a political component and, at least on occasion, have urged that interpretation be viewed as an institutionally shared enterprise. This tradition has been embraced by statesmen like Jefferson, Madison, and Lincoln, and has been expounded upon by scholars