Unfaithful Interpretation and The Gold Clause Cases
The other day I said that the Court must sometimes break with the view that constitutional interpretation is about being faithful. What’s my definition of unfaithful interpretation? To avoid arguing about the merits of cases that people might think were wrong or right, here’s my idea. Unfaithful interpretation is when a court declares that somebody has a right but, for prudential reasons, will get no remedy. It’s not that a remedy cannot be given (because of a statute or a doctrine) or that it’s only a partial or delayed remedy; the Court decides that it’s just a bad idea to provide any remedy. I think this is unfaithful if you assume that remedies and rights should be linked absent some contrary authority. Moreover, denying a remedy for prudential reasons undermines confidence that the legal analysis was done in good-faith.
What are some examples? Marbury, for starters. Sure, the Court said that it could not give him a remedy because that would be unconstitutional, but nobody thinks that Marshall’s reading of the statute there was anything other than a dodge. Worcester v. Georgia is another example, as the Court did not issue the mandate and thus left Worcester to sit in a Georgia jail until further notice. Ex Parte McCardle is another, as the Court could have issued an opinion on the merits in that case before the jurisdiction-stripping statute took effect but chose not to. Giles v. Harris, which I talk about in my new book on Populism, involved the Court’s refusal to give a remedy to African-Americans denied their suffrage rights in the South. The Gold Clause Cases, which will be the focus of my next Article and which I’ve posted about, is the least-well known instance of unfaithfulness.
What connects these cases? There was a deep fear among the Justices that providing a remedy would: (1) expose the Court to institutional damage; (2) lead to an adverse political outcome; or (3) both. Now, the question is, should the Court be unfaithful in these situations? Isn’t that getting dangerously close to saying that there is a higher law above the Constitution? (Judicial self-preservation? The Constitution is not a suicide pact?) Or does it suggest, as I suggested on Monday, that interpretive theory is wrong when it presupposes things like “integrity” or “fidelity?”
I’m not sure, which is why I think this might be a good paper.
UPDATE: In response to some of the comments, let me add this. Yes, the argument here is premised on the idea that rights and remedies should be linked. (After all, there must be some way of determining whether an action is unfaithful that can reach beyond a particular interpretative theory. I’m not sure that there is a better alternative.)
So the other thought is “Well, suppose my theory says that it should be followed unless doing so would lead to a bad result. In that case, I’ll refuse to provide a remedy. And if I do refuse, I’m being faithful to my theory, not unfaithful.”
That is true. Of course, it’s only true if that is your theory. Is refusing to provide a remedy evidence of support for that theory or evidence to the contrary? After all, the cases themselves don’t describe what they’re doing as consistent with some broader principle. Instead, they usually try to hide the inconsistency. Evidence of a guilty conscience, methinks. But maybe not — I’ll have to think about that.
UPDATE #2 — Perhaps this is really about interpretive “necessity” rather than “unfaithfulness.”