Scholar argues courts should embrace agencies’ role in adapting the Constitution to present-day society.
The U.S. Constitution often describes values in ambiguous language, such as “freedom of speech,” “cruel and unusual punishment,” and “equal protection of the laws.” The open-ended nature of many of the Constitution’s provisions has permitted their meaning to adapt over time in light of societal change. One way that meaning has evolved is through administrative agency action, explains Bertrall L. Ross II, a professor at the University of California at Berkeley Law School, in a recent law review article.
Ross argues that when agencies implement legislation, their interpretations of a particular statute’s meaning may implicate constitutional questions. As an example, Ross points to the determination by the Equal Employment Opportunity Commission (EEOC) that pregnancy discrimination constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. In Ross’ view, the EEOC’s interpretation was made against the backdrop of the Supreme Court’s evolving understanding of sex discrimination and its prohibition under the Constitution. In so interpreting Title VII, the EEOC was therefore simply taking part in the ongoing evolution of constitutional meaning that is generally associated with the judiciary, Ross argues.
In addition to taking part in constitutional development through statutory interpretation, Ross also points out that other types of agency action can equally implicate constitutional values. For example, Sophia Z. Lee, a professor at the University of Pennsylvania Law School, has documented in her recent book, The Workplace Constitution, how the now-dissolved Federal Power Commission applied a narrow reading of the Supreme Court’s state action doctrine – the principle that constitutional limits only apply to the government, not to private individuals and organizations – in order to mandate that utility companies provide racial minorities with equal employment opportunities.
Although the Supreme Court often defers to agency interpretations of ambiguous statutory provisions, Ross says that the Court resists instances of what Lee has dubbed “administrative constitutionalism,” choosing instead to reach its own interpretations of statutes where constitutional values are involved. According to Ross, the Court appears to view administrative constitutionalism as an illegitimate means to interpret constitutional values. The Court views itself as the superior interpreter of the Constitution, he says.
However, Ross contends that Court’s capacity to adapt constitutional meaning – and to keep the Constitution up-to-date with societal change – is limited in key ways. Over the past forty years, appointees to the Court have almost all previously served as judges, a role which requires a certain degree of disconnectedness from politics and social change. The result has been, Ross says, a group of justices who have been isolated from the nation’s political culture even before they took their seats on the Court.
At the same time, the number of justices with any experience whatsoever in the political branches of government – legislative or executive – has sharply declined. This fact, combined with the tendency of the justices to serve increasingly long tenures, has resulted in a Court that generally lacks exposure to societal change, Ross argues.
Moreover, Ross asserts that the Court’s institutional design often stands in the way of societal change. Once the Court reaches a decision about constitutional meaning, it is reluctant to overrule itself, even if its decision was reached against a particular societal background that no longer exists. In this way, the Court attempts to separate itself from the political branches of government and maintain a reputation for political independence. However, the Court’s concern for its own legitimacy operates as a barrier to its ability to adapt the Constitution to societal change, Ross argues. Even as new understandings of sex discrimination emerge in society, for example, the Court simply may not be able to adequately respond through its rulings.
From Ross’ perspective, administrative agencies can – and should – step in to provide alternatives to the Court’s applications of the Constitution. Unlike the Court, an agency’s institutional design and its political role as a policymaker permits it to engage in policy experimentation. As such, administrative constitutionalism provides opportunities to test different applications of constitutional principles in the face of evolving constitutional meaning, according to Ross. He says that this sort of constitutional experimentation provides the American people – and the Court – with an opportunity to learn how well different applications advance evolving constitutional meaning, and to mobilize and exert political pressure on lower courts and administrative agencies to embrace the applications best suited to particular societal contexts.
Ross contends that, in short, the Court should view agencies as partners, not adversaries, in selecting the applications of constitutional values that most successfully advance the Constitution’s meaning in a changing society. Such an approach, Ross believes, is faithful to the intent of the Constitution’s framers to create a governing document suited to survive for centuries, even as the world in which it was written becomes ancient history.
