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Reading 14: Judicial Interpretation William J. Brennan, Jr.

Reading 14: Judicial Interpretation William J. Brennan, Jr.

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Chapter 14: The Federal Judicial System: Applying the Law

way I read that text. When Justices interpret

the Constitution they speak for their community, not for themselves alone. The act of

interpretation must be undertaken with full

consciousness that it is, in a very real sense,

the community’s interpretation that is

sought. Justices are not platonic guardians

appointed to wield authority according to

their personal moral predilections. Precisely

because coercive force must attend any

judicial decision to countermand the will of

a contemporary majority, the Justices must

render constitutional interpretations that are

received as legitimate. The source of legitimacy is, of course, a wellspring of controversy in legal and political circles. At the

core of the debate is what the late Yale Law

School Professor Alexander Bickel labeled

“the countermajoritarian difficulty.” Our

commitment to self-governance in a representative democracy must be reconciled

with vesting in electorally unaccountable

Justices the power to invalidate the

expressed desires of representative bodies

on the ground of inconsistency with higher

law. . . .

There are those who find legitimacy in

fidelity to what they call “the intentions of

the Framers.” In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought

about the question under consideration and

simply follow that intention in resolving the

case before them. It is a view that feigns

self-effacing deference to the specific judgments of those who forged our original

social compact. But in truth it is little more

than arrogance cloaked as humility. It is

arrogant to pretend that from our vantage

we can gauge accurately the intent of the

Framers on application of principle to specific, contemporary questions. All too often,

sources of potential enlightenment such as

records of the ratification debates provide

sparse or ambiguous evidence of the original intention. Typically, all that can be

gleaned is that the Framers themselves did

not agree about the application or meaning

of particular constitutional provisions, and

hid their differences in cloaks of generality.

Indeed, it is far from clear whose intention

is relevant—that of the drafters, the congressional disputants, or the ratifiers in

the states—or even whether the idea of an

original intention is a coherent way of

thinking about a jointly drafted document

drawing its authority from a general assent

of the states. And apart from the problematic nature of the sources, our distance of

two centuries cannot but work as a prism

refracting all we perceive. One cannot help

but speculate that the chorus of lamentations calling for interpretation faithful to

“original intention”—and proposing nullification of interpretations that fail this quick

litmus test—must inevitably come from

persons who have no familiarity with the

historical record. . . .

Another, perhaps more sophisticated,

response to the potential power of judicial

interpretation stresses democratic theory:

because ours is a government of the people’s

elected representatives, substantive value

choices should by and large be left to them.

This view emphasizes not the transcendent

historical authority of the Framers but the

predominant contemporary authority of the

elected branches of government. . . .

The view that all matters of substantive

policy should be resolved through the

majoritarian process has appeal under some

circumstances, but I think it ultimately will

not do. Unabashed enshrinement of majority

would permit the imposition of a social caste

system or wholesale confiscation of property

so long as a majority of the authorized legislative body, fairly elected, approved. Our

Constitution could not abide such a situation.

It is the very purpose of a Constitution—and

particularly of the Bill of Rights—to declare

certain values transcendent, beyond the

reach of temporary political majorities. The

majoritarian process cannot be expected to

rectify claims of minority right that arise as

a response to the outcomes of that very

majoritarian process. . . .

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Faith in democracy is one thing, blind

faith quite another. Those who drafted our

Constitution understood the difference. One

cannot read the text without admitting that

it embodies substantive value choices; it

places certain values beyond the power of

any legislature. Obvious are the separation

of powers; the privilege of the Writ of

Habeas Corpus; prohibition of Bills of

Attainder and ex post facto laws; prohibition of cruel and unusual punishments; the

requirement of just compensation for official taking of property; the prohibition of

laws tending to establish religion or enjoining the free exercise of religion; and, since

the Civil War, the banishment of slavery

and official race discrimination. With

respect to at least such principles, we simply have not constituted ourselves as strict

utilitarians. While the Constitution may be

amended, such amendments require an

immense effort by the People as a whole.

To remain faithful to the content of the

Constitution, therefore, an approach to


interpreting the text must account for the

existence of these substantive value

choices, and must accept the ambiguity

inherent in the effort to apply them to

modern circumstances. . . .

We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the

history of the time of framing and to the

intervening history of interpretation. But

the ultimate question must be, what do the

words of the text mean in our time? For the

genius of the Constitution rests not in any

static meaning it might have had in a world

that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.

Source: From William J. Brennan, Jr., “Judicial

Interpretation.” Address to the Text and Teaching

Symposium, Georgetown University, October 12,


What’s Your Opinion?

Justice Brennan’s view of constitutional interpretation emphasizes the principles embedded in the Constitution and a need to apply these principles to

contemporary problems. Do you agree with this view? Why or why not?

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Economic and Environmental

Policy: Contributing to


We the people of the United States, in order to . . . insure domestic

tranquility . . .



he stock market was downright scary. The Dow Jones and Nasdaq

indexes had dropped steadily for two years, knocking trillions of dollars

off the value of stocks. Stocks that sold on the technology-heavy Nasdaq

index were particularly hard hit. By 2003, it had fallen 75 percent—a

steeper decline over the same length of time than had occurred at the

onset of the Great Depression. Was history about to repeat itself? Was

the U.S. economy in danger of collapse?

In fact, Wall Street and the rest of America reacted rather calmly to

the market downturn. Institutional and individual investors were unhappy

with the drop in the value of their stocks, but they did not panic. Among

the reasons was the existence of substantial government programs

designed to stabilize and stimulate the U.S. economy. When the Great

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Depression struck, no such programs existed. Moreover, the response to

the 1929–31 drop in stock prices made matters worse: businesses cut back

on production, investors fled the stock market, depositors withdrew their

bank savings, and consumers slowed their spending. All these actions

accelerated the downward spiral. In 2003, however, government programs

were in place to protect depositors’ savings, slow the drop in stock prices,

and steady the economy through adjustments in interest rates and spending programs. By 2004, the economy was already showing signs of


This chapter examines economic policy. As was discussed in Chapter 1,

public policy is a decision by government to follow a course of action

designed to produce a particular result. Economic policy centers on the

promotion and regulation of economic interests and, through fiscal and

monetary actions, on economic growth and stability. Directly or indirectly, the federal government is a party to almost every economic transaction in which Americans engage. Although the private decisions of firms

and individuals are the main force in the American economic system,

these decisions are influenced by government policy. Washington seeks to

maintain high productivity, employment, and purchasing power; regulates

business practices that otherwise would harm the environment or result

in economic inefficiencies and inequities; and promotes economic interests. The main ideas presented in this chapter are these:

★ Through regulation, the U.S. government imposes restraints on business

activity that are designed to promote economic efficiency and equity. This

regulation is often the cause of political conflict, which is both

ideological and group-centered.

★ Through regulatory and conservation policies, the U.S. government seeks to

protect and preserve the environment from the effects of business firms and


★ Through promotion, the U.S. government helps private interests achieve

their economic goals. Business in particular benefits from the

government’s promotional efforts, which take place largely in the

context of group politics.

★ Through its taxing and spending decisions ( fiscal policy), the U.S.

government seeks to maintain a level of economic supply and demand that

will keep the economy prosperous. The condition of the economy is

generally the leading issue in American electoral politics and has a

major influence on each party’s success.

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★ Through its money-supply decisions (monetary policy), the U.S.

government—through the Fed—seeks to maintain a level of inflation consistent with sustained, controllable economic growth.

The Public Policy Process

Government action in the economic sector is part of the public policy

process—the political interactions that lead to the emergence and resolution of public policy issues. Before examining U.S. economic policy, we

will first describe the process through which public policy is developed.

Political scientists have identified six stages that make up the policy

process (see Figure 15–1). The first two stages—problem recognition and

problem transformation—refer to the emergence of issues. The last four

stages—policy formulation, policy adoption, policy implementation, and

policy evaluation—refer to the resolution of issues.

Emergence of Policy Issues

Policy problems stem from conditions of society—the employment rate,

the quality of schools, the security of the nation, the safety of the streets,

and so on. Yet only certain conditions are seen as problems of a public

nature. Even conditions that are life-threatening can intensify for years

without being thought of as anything but a personal problem. Obesity is

an example. Americans did not suddenly wake up one day to discover that

they had gained dozens of pounds during the course of a night’s sleep.

Yet they had slowly become heavier until obesity was seen as a leading

Emergence of issues

Problem Recognition

Stage in which conditions

in society become seen

as problems

Problem Transformation

Stage in which problems

turn into political issues

Resolution of issues

Policy Formulation

Policy Adoption

Policy Implementation

Stage in which solutions

to problems are devised

Stage in which a policy

or program is adopted

Stage in which the

adopted policy is put in




Policy Evaluation

Stage in which the

effectiveness of the

policy is examined

The Public Policy Process

The public policy process refers to the political interactions that lead to the

emergence and resolution of public policy issues. The process includes six stages,

although not every issue goes through all stages or necessarily goes through them

in the exact order in which they are shown here.




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cause of poor health. Only recently have Americans begun to think of

obesity as a public policy problem.

In some cases problem recognition happens suddenly, as in the case of

the terrorist attacks of September 11, 2001. In one shocking moment,

hatred of the United States by extremist elements abroad—a condition—

erupted into a threat to America’s long-term security—a policy problem.

Yet ordinarily it takes time for people to realize that a problem requires

attention. During World War II, Americans of all races fought together

against the Nazis and their racist ideology. When the war ended, however, white Americans at first acted as if nothing in their own society

needed correcting. Black Americans knew better. They were still by law

shuttled off to separate and inferior public schools and denied entry to

white hospitals, restaurants, and theaters. The contradiction was simply

too obvious to be ignored. Within a decade, America had begun to dismantle its system of government-imposed racial segregation.

Problem transformation, the second stage in the policy process, is where

policy problems are turned into political issues. Not all problems make

the transition. In many American neighborhoods, residents are resigned

to unsightly streets and yards. They might complain about the unpleasant

conditions, but that is as far as it goes. Leadership is a vital part of this

stage in the policy process. Leadership sometimes can transform even

a small problem into a leading issue. Although the estate tax has been a

fact of dying ever since the Progressive era, it bothered only the very rich

until the 1990s, when conservative groups made it an issue. They even

relabeled it, believing that Americans would more readily oppose a “death

tax.” Through public forums, media appearances, and op-ed pieces, they

sought to change how Americans thought about the inheritance tax. Their

campaign was remarkably successful. In a 2006 NBC News/Wall Street

Journal poll, more than twice as many respondents said they would support a candidate who favored repeal of the estate tax as said they would

oppose such a candidate.

Special interests do not always seek to publicize their issue. Political

scientist E. E. Schattschneider noted that the “scope of conflict” affects

the outcome of issues.1 As a conflict widens, an ever larger number of

interests join the fight, forcing concessions from those interests already

involved in it. Accordingly, if a group can manage to limit the scope of

conflict—that is, to keep an issue to itself—it improves its chances of

getting what it wants. Iron triangles are this type of arrangement (see

Chapter 9). Through close, ongoing relationships with relevant executive

agencies and congressional committees, well-placed interest groups are

able to exert considerable influence over issues affecting them.

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Striking janitors parade in Beverly Hills, California. Citizen action has the potential to influence

several stages of the policy process. A protest march typically would be part of the problem

transformation stage—the point at which problems turn into issues.

Interest groups are not the only actors that help set the issue agenda.

Members of Congress, political parties, and the news media also do so.

The media, for example, have the power to focus public attention. By

highlighting a problem day after day, the media can lead people to decide

that something needs to be done about it. No agenda setter, however, has

more influence than does the president. Even a single presidential pronouncement sometimes will trigger a policy response. The AIDS crisis in

Africa was far from Americans’ minds until January 28, 2003. That

evening, in his State of the Union address, President George W. Bush

declared that Africa’s problem could no longer be ignored. Within

months, Congress had appropriated $1.4 billion to fight AIDS in Africa.

Resolution of Policy Issues

An occasional policy proposal is so straightforward that almost anyone

could draft it. As the 2006 midterm elections approached, congressional

Republicans revived an old issue—flag burning—as a means of energizing their conservative base. Their proposed constitutional amendment,

which came within a single Senate vote of passage, contained just seventeen words: “The Congress shall have power to prohibit the physical

desecration of the flag of the United States.”

Most policy proposals, however, are as intricate as the problems they

address. Because of the complexity of modern society, almost no problem

exists in isolation. Problems invariably are connected to other problems.

Consider, for example, the question of whether government price supports

for corn should be increased in order to ease the problems of corn farmers.

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Although a subsidy clearly would help corn growers, other interests might

or might not be helped by it. How would a subsidy impact consumers,

farmers’ decisions about which crops to plant, ethanol production, and the

federal deficit? How might such a subsidy affect foreign policy? Other

countries have corn growers who compete in the world market with

America’s farmers. If U.S. growers are provided a subsidy, they can sell

their corn at a lower price, giving them an advantage over other sellers in

the world market. Faced with that prospect, foreign governments might

decide to subsidize their own corn growers, possibly triggering a trade war.

As farfetched as this example might seem, it approximates what happened

in 2006 at the international round of trade talks. After five years of negotiation among scores of countries, the talks collapsed—partly because the

United States refused to reduce its hefty farm subsidies.

The complexity of modern policymaking has created an entire

industry—that of policy analysts. Thousands of scholars, consultants, and

policy specialists are engaged in policy formulation. Most economic policy,

for example, is designed by trained economists. Their ideas do not always

work, but the success rate is far higher than that of economic proposals

set forth by noneconomists.

Politicians also formulate policy. While they lack the analytic tools of

the policy specialists, they have their own strengths. Above all, they have

a sense of what other politicians will support. The best-crafted policy

proposal in the world is worthless if lawmakers will not vote for it. When

President Lyndon Johnson decided in 1965 to tackle the issue of public

health, some of his advisers wanted him to propose to Congress a

government-paid universal health care system like those of Europe.

Knowing that Congress would not enact such a program, Johnson opted

for a medical-care amendment to the social security act. The result was

Medicare, which today serves the medical needs of nearly forty million

American retirees.

Policies on the scale of the Medicare program are rare. Policy adoption

in the United States occurs within a system of divided powers that is a

barrier to enactment of ambitious programs. To become law, a bill must

receive majority support in the House and in the Senate and be signed

by the president. Unless there is solid support in each institution for substantial change, a bill is unlikely to succeed. A Senate filibuster by itself

sometimes is enough to deter further action. Because of the obstacles they

face, most policies enacted by Congress are modest in scope. As political

scientist Aaron Wildavsky noted, incremental policies—those that depart

only slightly from existing policies—are the characteristic output of the

U.S. policy process.2

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Political scientist John Kingdon found that major policy breakthroughs

tend to occur only when several stages of the policy process converge.3

When a problem is compelling, when political leaders are ready to tackle

it, and when policy analysts think they have an answer to it, decisive action

can result. Kingdon’s analysis describes the circumstances that led in 2001

to enactment of President Bush’s ambitious tax cut plan. At the time, the

economy needed a boost, Republicans were empowered by their victory

in the presidential election, and GOP policy analysts had amassed an array

of tax-cutting proposals. Bush got nearly everything he asked for, including a reduction of the capital-gains tax by nearly half.

After policy is adopted, policy implementation occurs. Responsibility for

implementation rests mostly with bureaucrats and judges. Bureaucrats are

charged with administering the law, and judges are responsible for applying

it in specific cases. As was explained in Chapters 13 and 14, administrators

and judges often have considerable latitude in carrying out the law.

Bureaucrats and judges often take the blame when implementation goes

astray. Frequently, however, the problem rests with the lawmakers.

Federal bureaucrats had the unenviable task in 2006 of implementing a

prescription drug benefit for the elderly that was based on poorly drafted

legislation. It contained so many exceptions, thresholds, and exclusions

that many senior citizens were baffled by the options. When they asked

for help, they often found that there was none to be had. Congress had

neglected to appropriate enough money to staff the program fully. At one

point during implementation, fewer than half as many retirees were

enrolled in the program as had been projected to be enrolled by that time.

During policy evaluation, the final stage of the policy process, the basic

question is whether a program is working as intended. Sometimes the question can be answered in specific terms, such as whether the construction of

a new stretch of federal highway is on time and within budget. Many policies, however, are hard to evaluate. An example is foreign economic aid.

Economic development in poor countries is subject to so many factors that

it is difficult to assess the effect of assistance grants. In such cases, policy

evaluation usually centers on how well the program is being administered—

for example, whether the money is being channeled to the right places or

instead is finding its way into the pockets of corrupt officials.

Policy evaluation is a substantial part of the policy process. Nearly

every government agency has an evaluation unit. In addition, broad

oversight is provided by agencies such as the Government Accountability

Office (GAO) within Congress and the Office of Management and Budget

within the executive branch (see Chapters 11–13). The GAO alone has a

budget of nearly $500 million.

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On occasion, the public has the final say in policy evaluation. Some

programs have been terminated because of public opposition. In 1989, for

example, Congress rescinded a law, passed less than a year earlier,

intended to protect Medicare recipients from the financial ruin of catastrophic illness. Retirees afflicted with such illness would pay only the first

$1,000 in medical costs; the federal government would pay the rest. In

formulating the policy, Congress decided to require all Medicare recipients to pay an insurance premium to help defray program costs. The outcry from seniors was deafening. They liked the benefit but were dead set

against paying the premium. When Dan Rostenkowsky (D-Ill.), chair of

the House committee that drafted the legislation, was leaving a meeting

in Chicago at which he had tried to explain the logic of the program, irate

senior citizens followed him to his car, beating it with their canes and

yelling “Rottenkowski” at him. Feeling trapped, Rostenkowsky broke

through the crowd and raced down the street on foot.4

In summary, the public policy process is a set of stages through which

problems pass on their way to some sort of resolution. In practice, the

stages sometimes merge or reverse their order. Policy formulation, for

example, sometimes goes hand in hand with problem transformation.

Interested parties might conclude that they can strengthen their case by

offering a solution at the same time they are highlighting the problem.

Nevertheless, the stages are analytically distinct. The problem recognition stage is when conditions in society become seen as public problems,

the problem transformation stage is when these problems turn into political issues, the policy formulation stage is when solutions to problems are

devised, the policy adoption stage is when a solution is settled upon in

the form of a policy or program, the policy implementation stage is when

the adopted policy is put into place, and the policy evaluation stage is

when the effectiveness of the policy is examined.

We turn now to a particular area of policy—the economy. The discussion starts with regulatory policy and concludes with an explanation of

government efforts to maintain a stable economy.

Government as Regulator

of the Economy

An economy is a system of production and consumption of goods and

services that are allocated through exchange. When a shopper chooses groceries at a store and pays money for them, that transaction is one of the

millions of economic exchanges that make up the economy. In The Wealth

of Nations (1776), Adam Smith presented the case for the laissez-faire

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