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61 S. Cal. L. Rev. 1669 (1987-1988)
Constitutional Interpretation and Judicial Selection: A View from the Federalist Papers

handle is hein.journals/scal61 and id is 1685 raw text is: ARTICLE CONSTITUTIONAL INTERPRETATION AND JUDICIAL SELECTION: A VIEW FROM THE FEDERALIST PAPERS MARK TUSHNET* I. The topic of this Symposium is the connection, if any, between theo- ries of constitutional interpretation and methods of judicial selection. For example, one might think that judges subject to periodic election may be justified in using relatively free wheeling methods of interpreta- tion, while life tenured judges should use more stringent ones. Our intui- tion is that we can alleviate the countermajoritarian difficulty posed by judicial review either by subjecting judges to majoritarian constraints or by constraining the judges by a relatively stringent theory of interpreta- tion: majoritarian constraints up, interpretive constraints down; or, con- versely, majoritarian constraints down, interpretive constraints up. I will explore this intuition and topic by generating an interpretation of The Federalist.1 This interpretation comprises two elements: the first dealing with government as a whole and the second dealing with judicial review. I have little original to say about either element.2 Any original- ity in my analysis lies in the juxtaposition of two familiar stories. I hope to show that these elements can be combined only by adopting a strong * Professor of Law, Georgetown University, B.A. 1967, Harvard University; M.A. 1971, J.D. 1971, Yale University. I would like to thank Gerry Spann, L. Michael Seidman, and Cass Sunstein for their comments on a draft of this Article. 1. I stress that this is only one possible interpretation of the argument of The Federalist. 2. See, eg., D. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST (1984); G. WILLS, EXPLAINING AMERICA: THE FEDERALIST (1981). 1669

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