American constitutional theory faces a dilemma. The United States Supreme Court has decided a large number of cases that are intuitively "right," but that cannot be justified under the orthodox theory of judicial review. Either the Court's behavior or the orthodox theory will have to change. This Article argues that theory will yield to practice and that a new conception of constitutional interpretation will emerge. The Article first describes the orthodox theory of judicial review, which rests on a strict construction of the constitutional text and the belief that the law is objectively determinable and can be separated from subjective moral values. The Article then discusses an emerging approach to constitutional interpretation, hermeneutics, which suggests that there is no single proper interpretation of the constitutional text, and that a judge's interpretation will necessarily be based on his or her personal beliefs and ideals. This normative approach is subject only to the constraints of a search for truth, consistency, and logical analysis. The Article compiles the record of how one Justice, William Rehnquist, has interpreted the Constitution. The Article shows how the orthodox theory fails to explain Justice Rehnquist's record, particularly in areas where he has taken an activist stance. His record can be explained by the hermeneutics theory, however, since it reflects normative theories of justice representing a social ideal not required by the constitutional text, i.e., the ideal of the "individualistic ethic." This ideal is implemented by rewarding the successful competitor and frustrating paternalistic attempts by the state to temper the competitive process. Conceding some indeterminancy in the constitutional text may lead to politically conservative interpretations such as Justice Rehnquist's, but it is no less supportive of different social ideals. A move from the orthodox theory to the new hermeneutic theory would actually favor public interest litigants by accentuating the normative element in judicial decisionmaking, and by removing questionable social practices from the protection of neutral legal terminology inspired by the orthodox theory of judicial review. Such a candid role for judicial review would serve our American democracy far better than cynical "textuar' apologies.
Justice Rehnquist and Constitutional Interpretation,
34 Hastings L.J. 1011
Available at: https://repository.uchastings.edu/hastings_law_journal/vol34/iss5/2