Constitutionalists have assumed, too quickly in my view, that symmetry should exist between the interpretive styles of the courts and Congress. This assumption, which I shall call the myth of interpretive symmetry, slights the many reasons why an interpretive method may work well in one area and not work as well in another. Instead of mapping out all these possible divergences, I illustrate the point with three examples: the roles of history, precedent, and moral philosophy. I show how, in each instance, arguments can be made to suggest that divergent institutional roles should be taken into account in formulating a comprehensive interpretive philosophy about the Constitution. This essay largely concentrates on the first example, the role of history. It contrasts two prevailing theories of constitutional law, legal process and minority protection, and argues that implicit in each theory is an account of why the role of history might differ depending on whether the decisionmaker is the judiciary or Congress. It is well established at this point that the ultimate purposes of the Constitution will influence what style of interpretation is appropriate. What this essay seeks to show is that those purposes counsel different interpretive theories for different constitutional actors. This essay does not address the debate on whether Congress should interpret the Constitution, or which branch has the ultimate authority to act as its interpreter. After all, the Constitution's structure dictates that courts will not be the only branch to interpret the Constitution. But the Constitution does not tell us how much interpretive power any branch should have, nor does it tell us how Congress should interpret the document. My goal is to demonstrate that the myth of interpretive symmetry has obscured what may be a rich variety of ways to read the Constitution with respect to different branches of government.
63 Law & Contemp. Probs. 169-191 (2000)
Scholarly Commons Citation
Katyal, Neal K., "Impeachment as Congressional Constitutional Interpretation" (2000). Georgetown Law Faculty Publications and Other Works. Paper 126.