Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies

Students of constitutional law regularly evaluate the Supreme Court’s performance in interpreting the Constitution. Evaluations of Congress’s performance of this same task are much less common. When we evaluate the Court’s performance, our comments are frequently critical. That is, we do not believe that the Court’s practice of interpretation of the Constitution is flawless. Yet, comments on Congress’s performance frequently are based on the assumption that flaws in that institution’s performance demonstrate its general inability to do a decent job of interpreting the Constitution. We also have developed a number of justifications for judicial review. Assertions that the Court has some institutional superiority in deciding constitutional questions are common in those justifications. Those assertions might support a general skepticism about Congress’s ability to interpret the Constitution well. Ordinarily, however, the claims about institutional superiority deal solely with structural characteristics of the Court and legislatures. So, for example, we note that electoral pressures may unduly influence members of Congress, even if they are sincerely interested in interpreting the Constitution correctly. In contrast, we point out, judges do not face such pressures.