On the Indeterminacy of Constitutional Rights and Powers

Drafted in 1787, the US Constitution was an attempt to

• establish three new governing institutions to exercise significant but limited powers over the pre-existing states and

• codify a set of political arrangements between the states.

Cooperation under the Articles of Confederation (1777)—a looser arrangement in which each of the newly independent former colonies insisted that each state retain “sovereignty, freedom, and independence”—had begun to break down. The drafters of the 1787 document sought to remedy those problems by establishing “a more perfect—[i.e., a more complete and integrated]—union”.

Along the way, the drafters assigned specified powers to governmental offices and officers. Many proponents of the Constitution, including James Madison, believed that specifying a limited set of powers was sufficient to safeguard against governmental abuses. A list of powers implied a limit on powers. When critics insisted that the draft should contain a list of individual rights as well, Madison expressed concern that listing rights similarly implied a limit on rights, which he did not mean to imply. A compromise was struck in which the main text of the Constitution—with its seven main divisions, called ‘articles’—was ratified with specified powers, and ten amendments[i] were quickly added which specified a set of individual rights.  

Thus, the Constitution, in addition to establishing institutions and codifying cooperative arrangements between the states, articulates a set of governmental powers and individual rights. As for concerns about what a list of rights and powers would imply, the matter was addressed head-on in the Ninth and Tenth Amendments.

The Ninth Amendment reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the listing of rights should not be understood as a limit on what liberties the people might have and enjoy. The first eight amendments are an illustrative list, not an exhaustive list of protected rights.

The Tenth Amendment reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In other words, the listing of powers should be understood as a limit on the prerogatives the new centralizing institutions might exercise. The powers assigned to the national government are an exhaustive list, not merely an illustrative list. Moreover, any residual authority resided with the states—where a more generalized set of powers were to be entrusted to institutions which were closer to and more directly responsive to the values and preferences of smaller communities.

So, according to the constitutional framework, the government has powers and the people have rights. Powers define what the government may do—or more precisely, how governmental officials may variously act upon the persons within their respective jurisdictions. Because these officials

• are chosen by the people of the relevant jurisdictions,

• must be periodically re-authorized to hold such offices, and

• are chosen on a majoritarian basis,

their actions will, in principle, reflect broad, extant societal consensus.[ii]

Rights define a scope of personal autonomy or self-direction not to be intruded upon by government.[iii] These rights are not generally understood to be absolute, even where the constitutional phrasing would suggest that they are. For example, the First Amendment’s “Congress shall make no law… prohibiting the free exercise [of religion]” has never been understood to protect conduct that would otherwise be criminalized.

But it is worth observing that this specification of powers and rights is not nearly so determinative as many Americans believe. Consider the following. Articles I, II, and III of the Constitution establish the three branches of national government, discussed below in reverse order.

Article III vests judicial power “in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The shortest of the three institution-establishing articles, the text does not tell us the qualifications for the judicial office or how these judges are to carry out their functions. These matters have been determined by congressional statute and tradition. But we are told that the Court has the power to resolve disputes (“cases” and “controversies”) and that its jurisdiction “shall extend to all cases, in law and equity, arising under this Constitution.”

Article II vests the executive power “in a President of the United States of America.” Only slightly longer than Article III, Article II outlines presidential qualifications and several key functions of the office, which overlap with those of Congress to a large degree. Perhaps the most important functions of the presidency are to appoint and supervise other governmental officials and to “take care that the laws be faithfully executed.”

Article I vests “all legislative powers…in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article I is the longest of the three institution-establishing articles, and it tells us much about the internal operations of Congress—which is really two separate institutions with a shared legislative function but key distinctions as well. For example, each body has functions not shared by the other and each body serves under a different model of representation. Importantly, Section 8 opens with “Congress shall have power to…” and outlines 17 topics about which Congress may legislate. Since the President’s primary responsibility is to take care that the laws be faithfully executed and the judiciary’s primary responsibility is to resolve disputes arising under the same, much of the national government’s power as a whole hinges on this enumeration of powers in Article I, Section 8. Moreover, since the Tenth Amendment defines state powers as a residuum—i.e., whatever is left over after the delegation of power to the national government—the scope of state power also hinges on the enumeration found in Article I, Section 8.  

Yet Section 8 contains an elastic clause which complicates the picture. After enumerating 17 topics about which Congress may legislate, Section 8 concludes by granting Congress the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Whatever this provision is held to mean, it certainly renders the prior list of congressional powers non-exhaustive in nature.

Recall also that while the first eight amendments to the Constitution list individual rights, the Ninth Amendment expands that list to include any number of other unspecified rights “retained by the people.” Here too, whatever this provision is held to mean, it certainly renders the prior list of rights non-exhaustive in nature.

But the indeterminacy of constitutional powers and rights arises not solely from the non-exhaustive nature thereof. Neither powers nor rights are described with a degree of precision susceptible of direct application. 

Consider powers. Congress may "tax [and spend] for the common defense and general welfare" but in South Dakota v. Dole (1987), the question was whether Congress could place conditions on the money it allocated to the states. The Constitution does not say. In NFIB v. Sebelius (2012), many questions arose, including whether money charged by Congress to individuals who did not purchase health insurance in a given year was a regulatory penalty or a tax. At an early stage in the litigation, the Court determined that the charge at issue was a regulatory penalty; later, it decided to construe it as a tax. Because the charge was construed as a tax, the Court needed not invalidate the law as an improper exercise of Congress' separate power to "regulate commerce...among the several states." In resolving these questions, the constitutional text--given the high level of generality with which it is written--is the problem to be worked out, not the solution to the problem. And the text leaves us little guidance on how to solve the problem.

The problem of generality is no less acute when we turn to rights. The Fourth Amendment protects "against unreasonable searches and seizures." But the text does not tell us what is or is not reasonable. In U.S. v. Jones (2012), a case involving GPS tracking of a criminal suspect, the nine justices provide 3 different answers about how to determine if a search has even taken place. None of these answers can be found explicitly in the text of the Constitution.

The Fifth and Fourteenth Amendments protect against the deprivation "of life, liberty, or property, without due process of law." This provision was held to safeguard against economic regulations...until it wasn't. Later, it was held to safeguard a right to an abortion…until it wasn't.

The Fourteenth Amendment's guarantee that "No state shall...deny to any person within its jurisdiction the equal protection of the laws" was held in 1896 to permit segregation of persons by race.

By 1954, the assignment of persons to separate facilities according to race was deemed unconstitutional because "inherently unequal."

If the text of the Constitution does not definitively

• list what powers the government may exercise,

• list what rights the people may enjoy, nor

• define powers or rights with enough precision to be directly applied,

how are such things to be determined?

Judges.

The work of judges in determining the scope, meaning, and application of constitutional text is often described as interpretation. This is a perfectly fine term so long as one does not become confused about what it means. A Korean phrase like "안녕하십니까?" can be variously interpreted as "Hello" or "How are you?" or "Are you at peace?" Each of these translations is an attempt to render a standard Korean greeting into an English one. The phrase has a definitive meaning, and the only real question is the best way to render it in English. While two different persons may render the translation slightly differently, their interpretations will not typically be diametrically opposed. Not so with constitutional interpretation.

Constitutional interpretation is something far more creative and, frankly, motivated than a straightforward translation exercise. If the Constitution states that members of the House of Representatives must stand for re-election every two years, this requirement is fairly clear. But

• what constitutes reasonableness under the Fourth Amendment,

• what process is due under the Fifth or Fourteenth Amendments, and

• what is cruel, unusual, or excessive under the Eighth Amendment

is not obvious, and no technical legal training will confer on a judge special insight to derive an answer from the text of the Constitution. Constitutional law is not an exercise in pure logic. It is ethical and political theory-building. Stone Sweet put the matter succinctly: "As time passes, the constitution will become heavily supplemented by the jurisprudential corpus, which itself comes to look increasingly like a theory--or set of theories--about the constitution" (2000, 29).

[i] More than ten amendments were proposed, but only ten were ratified initially. One of the failed amendments achieved ratification in 1992, the Twenty-seventh Amendment.

[ii] The first and last of these features are only indirectly true of federal judges, who are appointed by the President with the approval of the Senate. The second feature, periodic re-authorization, does not apply to these judges at all, as they “shall hold their offices during good behaviour”—a tenure terminated only by voluntary retirement, death, or impeachment.

[iii] Note that the provisions of the Bill of Rights protect explicitly against governmental intrusion and make no mention of intrusions by non-governmental actors. Thus, “Congress shall make no law…abridging the freedom of speech”, but that is not to say that private actors like online social media platforms cannot enforce content-based restrictions on user posts. When the government protects individuals from harms perpetrated by non-governmental actors, this is an exercise of governmental power. Rights, by contrast, imply limits on governmental power.