Madisonian Balancing: A Theory of Constitutional Adjudication

ions of principle and the life of facts .... It softens the rigors of absolutes, makes room for judgment and for sensitivity to differences of degree." Louis Henkin, Infallibility Under Law: Constitutional Balancing, 78 COLUM. L. REV. 1022, 1047 (1978). 4 See HUGO L. BLACK, A CONSTITUTIONAL FAITH 50-52 (1968); El Paso v. Simmons, 379 U.S. 497, 517, 528-33 (1965) (Black, J., dissenting); see also T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987); Laurent B. Frantz, The First Amendment in the Balance, 71 YALE L.J. 1424 (1962). 5 See also Wallace Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 CAL. L. REV. 821 (1962). HeinOnline -88 Nw. U. L. Rev. 642 1993-1994 Madisonian Balancing mandated by the American constitutional system, compared to the alternatives, it best exemplifies the objectives and spirit of that system. My goal is to describe the most meticulous and conscientious method for adjudicating constitutional cases. My primary concern is constitutional adjudication, not constitutional interpretation. 6 I focus on the constitutional method and, in particular, offer a procedure by which varying normative principles can be integrated into variable factual information. Today, constitutional adjudication is in a state of disarray. This situation is largely attributable to the Court's failure to articulate consistent, normative constitutional contexts in which to place constitutional facts. The Court regularly evidences complete confusion, utter indifference, or simple ignorance about fact finding in constitutional cases.7 For example, in City of Cleburne v. Cleburne Living Center,8 the Court invalidated a government regulation under rational basis review because there was no evidence to support it; in Burson v. Freeman,9 in contrast, the Court upheld a government regulation under strict scrutiny review because there was no evidence against it. And in Planned Parenthood v. Casey,'0 in the course of the same opinion, Justices O'Connor, Kennedy and Souter upheld a 24-hour waiting period and invalidated a spousal notification provision, though the quantum of evidence was virtually the same as to whether either posed a "substantial obstacle" to the exercise of the abortion right." Madisonian Balancing offers a firm footing for the currently "rootless nature"'12 of the Court's constitutional adjudication. This Article proposes a balancing method that fully accounts for the values and facts inherent in the constitutional clash between individual liberty and government interests. Madisonian Balancing begins with the premise that a constitutional injury caused by some government action cannot be described in a piecemeal fashion. An infringement of a due process property right, for example, has greater constitutional significance when it also infringes freedom of speech. A court's evaluation of the constitutionality of a challenged government action must entail a full 6 By this statement, I do not mean to join the debate over whether "adjudication is interpretation." Compare Owen M. Fiss, Objectivity and Interpretation, 34 STAN. L. REv. 739, 739 (1982) ("Adjudication is interpretation: Adjudication is the process by which a judge comes to understand and express the meaning of an authoritative legal text and the values embodied in that text.") with Robin L. West, Adjudication is Not Interpretation: Some Reservations About the Law-as-Literature Movement, 54 TENN. L. REv. 203, 207 (1987) ("[A]djudication is not primarily an interpretive act of either a subjective or objective nature; adjudication, including constitutional adjudication, is an imperative act.") (emphasis in original). Although my proposal clearly has relevance to this debate, enumerating the specific ways it does so must await another day. 7 See Faigman, supra note 2, at 577-88. 8 473 U.S. 432, 448 (1985). 9 112 S. Ct. 1846, 1856 (1992). 10 112 S. Ct. 2791 (1992). 11 See infra note 206 for discussion of the empirical research relevant to this question. 12 Casey, 112 S. Ct. at 2878 (Scalia, J., dissenting). 88:641 (1994) HeinOnline -88 Nw. U. L. Rev. 643 1993-1994 NORTHWESTERN UNIVERSITY LAW REVIEW assessment of the constitutional costs of that action. Madisonian Balancing thus operates with a Constitution-wide perspective, rather than from a right-specific or amendment-specific viewpoint. The metric by which individual liberty is to be balanced against government interests is constitutionality itself. The balance is struck at a transactional level, by comparing the depth of the full constitutional infringement with the government's justification for its action. Madisonian Balancing thus aggregates rights and then balances them against the government's interests, which have always been aggregated for balancing purposes. As currently practiced, however, balancing is mired in a bog of indeterminacy. Madisonian Balancing combines two separate lines of thought that must be brought together to give some structure to balancing before it disappears into a constitutional muck. First, the foundational and relatively non-controversial assumptions of the Constitution provide the main support. I refer to this pillar as the Madisonian paradigm.1 Specifically, the Madisonian paradigm refers to the dilemma upon which American constitutional democracy rests. 14 On the one hand, democratic majorities enjoy the fundamental right to rule as they desire, while, on the other, individuals receive protection from majoritarian interference in particular spheres. Any error in ascertaining the boundary between the majority's right to rule and a minority's legitimate right to be free of such rule results in tyranny. Whereas majoritarian interference with protected rights constitutes a tyranny by the majority, denial of the majority's power to rule in spheres not specifically protected constitutes a tyranny by the minority. 5 Courts are called upon to resolve the Madisonian dilemma by carrying out the primary task in constitutional adjudication of ascertaining and policing the boundary between the two tyrannies. 16 The second pillar supporting Madisonian Balancing comes from an unlikely source-the common law of evidence. Evidence scholars have always concerned themselves with the integration of uncertain factual information into previously defined value systems. Evidence doctrine ex13 See David L. Faigman, Reconciling Individual Rights and Government Interests: Madisonian Principles Versus Supreme Court Practice, 78 VA. L. REV. 1521, 1526-34 (1992). 14 See ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 22-24 (1956); see also ROBERT H. BORK, THE TEMPTING OF AMERICA 39-41 (1990) [hereinafter BORK (1990)]; Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 3 (1971) [hereinafter Bork (1971)]. 15 Judge Robert Bork described the clash of principles as follows: Majority tyranny occurs if legislation invades the areas properly left to individual freedom. Minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. Yet, quite obviously, neither the majority nor the minority can be trusted to define the freedom of the other. This dilemma is resolved in constitutional theory, and in popular understanding, by the Supreme Court's power to define both majority and minority freedom through the interpretation of the Constitution. Bork (1971), supra note 14, at 3.