CRS Annotated Constitution

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Limitations on the Exercise of Judicial Review

Constitutional Interpretation.—In a system such as the one in the United States in which there is a written constitution, which is law and is binding on government, the practice of judicial review inherently raises questions of the relationship between constitutional interpretation or construction and the Constitution—the law—which is construed. The legitimacy of construction by an unelected entity in a republican or democratic system becomes an issue whenever the construction is controversial, as it was most recently in the 1960s to the present. Full consideration would carry us far afield, in view of the immense corpus of writing with respect to the proper mode of interpretation during this period.

Scholarly writing has identified six forms of constitutional argument or construction that may be used by courts or others in deciding a constitutional issue.607 These are (1) historical, (2) textual, (3) structural, (4) doctrinal, (5) ethical, and (6) prudential. The historical argument is largely, though not exclusively, associated with the theory of original intent or original understanding, under which constitutional and legal interpretation is limited to attempting to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or the constitutional provision in question. The textual argument, closely associated in many ways to the doctrine of original intent, concerns whether the judiciary or another is bound by the text of the Constitution and the intentions revealed by that language or whether it may go beyond the four corners of the constitutional document to ascertain the meaning, a dispute encumbered by the awkward constructions, interpretivism and noninterpretivism.608 [p.706]Using a structural argument, one seeks to infer structural rules from the relationships that the Constitution mandates.609 The remaining three modes sound in reasoning not necessarily tied to original intent, text, or structure, though they may have some relationship.Doctrinal arguments proceed from the application of precedents. Prudential arguments seek to balance the costs and benefits of a particular rule. Ethical arguments derive rules from those moral commitments of the American ethos that are reflected in the Constitution.

Although the scholarly writing ranges widely, a much more narrow scope is seen in the actual political–judicial debate. Rare is the judge who will proclaim a devotion to ethical guidelines, such, for example, as natural–law precepts. The usual debate ranges from those adherents of strict construction and original intent to those with loose construction and adaptation of text to modern–day conditions.610 However, it is with regard to more general rules of prudence and self–restraint that one usually finds the enunciation and application of limitations on the exercise of constitutional judicial review.

Prudential Considerations.—Implicit in the argument of Marbury v. Madison611 is the thought that with regard to cases meeting jurisdictional standards, the Court is obligated to take and decide them. Chief Justice Marshall expressly spelled the thought out in Cohens v. Virginia:612 “It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” As the comment recognizes, because judicial review grows out of the fiction that courts only declare[p.707]what the law is in specific cases613 and are without will or discretion,614 its exercise is surrounded by the inherent limitations of the judicial process, most basically, of course, by the necessity of a case or controversy and the strands of the doctrine comprising the concept of justiciability.615 But, although there are hints of Chief Justice Marshall’s activism in recent cases,616 the Court has always adhered, at times more strictly than at other times, to several discretionary rules or concepts of restraint in the exercise of judicial review, the practice of which is very much contrary to the quoted dicta from Cohens. These rules, it should be noted, are in addition to the vast discretionary power which the Supreme Court has to grant or deny review of judgements in lower courts, a discretion fully authorized with certiorari jurisdiction but in effect in practice as well with regard to what remains of appeals.617

At various times, the Court has followed more strictly than other times the prudential theorems for avoidance of decisionmaking when it deemed restraint to be more desirable than activism.618

The Doctrine of “Strict Necessity.”—The Court has repeatedly declared that it will decide constitutional issues only if strict[p.708]necessity compels it to do so. Thus, constitutional questions will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation, nor if a construction of the statute is fairly possible by which the question may be fairly avoided.619

Speaking of the policy of avoiding the decision of constitutional issues except when necessary, Justice Rutledge wrote: “The policy’s ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.”620


607 The six forms, or “modalities” as he refers to them, are drawn from P. Bobbitt, Constitutional Fate—Theory of the Constitution (1982); P. Bobbitt, Constitutional Interpretation (1991). Of course, other scholars may have different categories, but these largely overlap these six forms. E.g., Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 L. Rev.1189 (1987); Post, Theories of Constitutional Interpretation, in R. Post (ed.), Law and the Order of Culture (1991), 13–41.
608 Among the vast writing, see, e.g., R. Bork, The Tempting of America (1990); J. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); L. Tribe & M. Dorf, On Reading the Constitution (1991); H. Wellington, Interpreting the Constitution (1990); Symposium, Constitutional Adjudication and Democratic Theory, 56 Y. U. L. Rev.259 (1981); Symposium, Judicial Review and the Constitution—The Text and Beyond, 8 U. Dayton L. Rev 443 (1983); Symposium, Judicial Review Versus Democracy, 42 St. L. J.1 (1981); Symposium, Democracy and Distrust: Ten Years Later, 77 L. Rev.631 (1991). See also Farber, The Originalism Debate: A Guide for the Perplexed, 49 St. L. J.1085 (1989).
609 This mode is most strongly association with C. Black, Structure and Relationship in Constitutional Law (1969).
610 E.g., Meese, The Attorney General’s View of the Supreme Court: Toward a Jurisprudence of Original Intention, 45 Pub. Admin. Rev. 701 (1985); Addresses—Construing the Constitution, 19 C. Davis L. Rev.1 (1985), containing addresses by Justice Brennan, id., 2, Justice Stevens, id., 15, and Attorney General Meese. Id., 22. See also Rehnquist, The Notion of a Living Constitution, 54 L. Rev.693 (1976).
611 1 Cr. (5 U.S.) 137 (1803).
612 6 Wheat. (19 U.S.) 264, 404, (1821).
613 See, e.g., Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525, 544 (1923), and Justice Roberts in United States v. Butler, 297 U.S. 1, 62 (1936).
614 “Judicial power, as contradistinguished from the powers of the law, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62–63 (1936).
615 The political question doctrine is another limitation arising in part out of inherent restrictions and in part from prudential considerations. For a discussion of limitations utilizing both stands, see Ashwander v. TVA 297 U.S. 288, 346–356 (1936) (Justice Brandeis concurring).
616 Powell v. McCormack, 395 U.S. 486, 548–549 (1969); Baker v. Carr, 369 U.S. 186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967).
617 28 U.S.C. §§ 1254 –1257. See F. Frankfurter & J. Landis, op. cit., n. 12, ch. 7. “The Supreme Court is not, and never has been, primarily concerned with the correction of errors in lower court decisions. In almost all cases within the Court’s appellate jurisdiction, the petitioner has already received one appellate review of his case. . . . If we took every case in which an interesting legal question is raised, or our prima facie impression is that the decision below is erroneous, we could not fulfill the Constitutional and statutory responsibilities placed upon the Court. To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.” Chief Justice Vinson, Address on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It “is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari.” Chief Justice Warren, quoted in Wiener, The Supreme Court’s New Rules, 68 L. Rev.20,51 (1954).
618 See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, op. cit., n. 576, 111–198, with Gunther, The Subtle Vices of the “Passive Virtues”—A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964).
619 Rescue Army v. Municipal Court, 331 U.S. 549, 568–575 (1947). See also Berea College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & N.R.R. Co., 213 U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman v. Breeze Corp., 323 U.S. 316, 324–325 (1945); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial restraint as well as considerations of comity underlie the Court’s abstention doctrine when the constitutionality of state laws is challenged.
620 Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947).
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