CHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review

Depending on our individual histories, we each encounter the course Liberty, Equality, and Due Process with different understandings of American history, political philosophy, government, or social justice.

Here is a basic timeline of texts that might be helpful:

The Declaration of Independence, 1776

Authored by Thomas Jefferson, the Declaration’s most famous passage is this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The Declaration of Independence also includes a list of grievances regarding Acts of King George III against the “American” colonies; some of these reappear as specific guarantees in the Constitution, for example, the grievance “quartering large bodies of armed troops among us” is echoed in the Third Amendment.

One of the grievances in the draft Declaration by Jefferson is an explicit attack on slavery and the “slave trade”: “He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep open a market where Men should be bought & sold . . . .”

The Articles of Confederation and Perpetual Union, drafted 1776, ratified by 13 states 1781.

This is the precursor to the United States Constitution, sometimes known as the United States’ “first constitution” or “failed constitution,” usually simply called the “Articles of Confederation.” The generally accepted rationale for the failure of the Articles of Confederation was that the national government was too weak when compared with state governments.

The United States Constitution, including the Bill of Rights, drafted 1787; became effective 1789.

In addition to the text of the Constitution, there are three textual sources that are often cited in historical sources:

The Debates at the Constitutional Convention; The Anti-Federalist Papers (arguments circulated to the states during the ratification process generally against the Constitution); The Federalist Papers (arguments circulated to the states during the ratification process in favor of the Constitution; generally anonymous but attributed and many still influential).

The Constitution structures the federal government into three parts: Article I establishes and concerns the Legislative branch (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It provides specific enumerated powers to Congress, specific limitations, and provides limitations on the powers of States.)

Article II establishes and concerns the Executive branch (It establishes the office of President and Vice President, the manner of election by “Electors,” specific roles of the President, and impeachment).

Article III establishes and concerns the Judicial Branch (It provides that the “judicial power” is vested in one supreme court and such inferior courts as Congress may establish, extending to “all Cases, in Law and Equity, arising under this Constitution,” and in other instances.)

Articles IV – VII also structure the government.

Article IV regards relations among the states and among “citizens” of each state; Article V pertains to the mode of amendment;

Article VI includes the Supremacy Clause declaring that the Constitution (and the laws made pursuant to the Constitution) are the supreme “Law of the Land”);

Article VII outlines the process for ratification of the Constitution.

The Amendments to the Constitution as originally proposed were twelve; only ten passed and these are known as the Bill of Rights.

The “Reconstruction Amendments,” after the Civil War (1861-1865)

The Thirteenth Amendment (abolition of slavery) (1865)

The Fourteenth Amendment (Citizenship Clause, “No state shall”; Equal Protection, Due Process, Privileges or Immunities) (1868)

The Fifteenth Amendment (voting shall not be deprived on basis of race) (1870)

Judicial review—the power of the judiciary to declare acts of a usually elected legislative or executive body void as unconstitutional—is both a cornerstone and a divisive subject of United States constitutional law. Judicial review is a feature of most, but not all, constitutional democracies in the world, as well as a feature of many nations that are considered less than democratic. In the so-called American model, general courts hear constitutional as well as nonconstitutional issues. In the so-called European model, there is one or more special “Constitutional Court” devoted exclusively to hearing cases challenging the constitutionality of government laws or acts.

In addition to the judicial power to declare legislative (or executive) acts invalid, the question of judicial independence is important. In the federal system, judges are not elected but are nominated by the President and confirmed by the Senate, adding to the anti-democratic critique. Further, in many nations, the term for judges is a definite one, such as ten or twelve years. In the United States Constitution, Article III § 1 provides that federal judges “shall hold their Offices during good Behaviour” which has meant life-tenure, although subject to impeachment. The central concern is that judges be able to exercise independent judgment without fear of reprisal or losing their positions. Simply put, if a judge can be terminated by the Executive, she may be more cautious in ruling that a law signed by the Executive is invalid.

In the United States, Marbury v. Madison (1803) is considered the landmark case that “established” judicial review and is the case that has “tortured generations of law students” as they confront Constitutional Law and the issue of judicial review. It is in virtually every Constitutional Law Casebook in the United States, including this one.

5 U.S. (1 Cranch) 137 (1803)

Mr. Chief Justice Marshall delivered the opinion of the Court.

At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring the Secretary of State to show cause why a mandamus should not issue directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia. * * * * The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the Court is founded.

In the order in which the Court has viewed this subject, the following questions have been considered and decided.

1. Has the applicant a right to the commission he demands?

2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is:

1. Has the applicant a right to the commission he demands? * * * *{The Court considered the nomination process and whether it had been followed.} To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.

This brings us to the second inquiry, which is:

2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. * * * *

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. * * * *

{The Court ultimately concluded that Marbury} having this legal title to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be inquired whether,

3. He is entitled to the remedy for which he applies. This depends on:

1. The nature of the writ applied for, and

2. The power of this court.

* * * * {The Court ultimately concluded that} This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired:

Whether it can issue from this Court.

The act to establish the judicial courts of the United States authorizes the Supreme Court

“to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”

{This is from Section 13 of the 1789 Judiciary Act, reproduced in the Notes.}The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.

The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that

The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage—is entirely without meaning—if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

If the solicitude of the Convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction.

When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.

To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?

The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?

“No person,’ says the Constitution, ‘shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Here the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:

“I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.”

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

Check Your Understanding

1. Marbury is not an easy case, in part because of Chief Justice Marshall’s style. There are many issues in the case and the order in which they are presented is not necessarily logical. But the central feature of the case is the Supreme Court’s power, including the “power” that Congress sought to confer on the Court by § 13 of the Judiciary Act of 1789:

And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

Be prepared to articulate the Court’s holding regarding the statute.

2. While Chief Justice Marshall alludes to the “peculiar delicacy” of the case, that is not apparent from the opinion. The underlying events start with the election of 1800, a contentious election in the early history of the United States, marking the rise of political parties. The Federalist party had been in power, led by John Adams who had lost his re-election for President to Thomas Jefferson, a Republican-Democrat.

John Marshall served as the Secretary of State under Adams. When John Jay declined an offer to resume his position as Chief Justice, Adams nominated Marshall to be the new Chief Justice of the United States Supreme Court. Marshall assumed his position on the Supreme Court on February 4, 1801, and continued to simultaneously serve as Adams’ Secretary of State until March 4, 1801, when Thomas Jefferson was inaugurated as President.

During Adams’ last days in office, he worked to fill the numerous new judicial vacancies created by the lame-duck Congress. Many commentators believe the Federalist’s goal was to take control of the judicial branch, having lost power in the executive and legislative branches.

Marbury filed his original action before the United States Supreme Court in December 1801. In those early days of the Court, the docket was small and the Court should have been able to decide the case promptly. However, the new Congress had abolished the June and December 1802 Terms of the Court and had repealed the Judiciary Act of 1801, which returned the Supreme Court Justices to the busy task of “circuit-riding.” Thus, the Court did not hear Marbury v. Madison until 1803.

3. Scholars have argued that Marbury v. Madison did not “establish” judicial review. For example, William Michael Treanor, in Judicial Review Before Marbury, 58 Stan.L.Rev. 455, 457-58 (2005), examines thirty-one pre-Marbury cases in which a statute was invalidated and seven additional cases in which, although the statute was upheld, one judge concluded that the statute was unconstitutional. The United States Supreme Court itself had previously invalidated a Virginia statute in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), known as the British Debt Case, as inconsistent with the Treaty of Paris. (The Virginia statute had sought to nullify Revolutionary War debts which the treaty had agreed were enforceable). In Federalist No. 78, attributed to Alexander Hamilton, there is an argument for judicial review including the proposition that the United States Supreme Court would be the ultimate arbiter of the Constitution. Note that in Marbury, Chief Justice Marshall implies that judicial review is an inherent feature of the judiciary.

Nevertheless, Marbury is generally cited as the landmark case establishing judicial review. As such, it could be cited by courts whenever they are considering the constitutionality of government actions, but in fact it is cited only occasionally. Consider what circumstances cause a court (or a litigant) to cite Marbury v. Madison.

Further Your Understanding

CALI Lesson: Marbury v. Madison

CALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your understanding of Marbury v. Madison and its relevance. The above-linked lesson includes 25 questions and should take 30 – 45 minutes to complete.

The question of how courts should interpret the constitution – – – and the question of how we might understand judicial opinions and construct legal arguments – – – is a vexed one. There are many types of constitutional theories, but below is a broad outline.

Originalist theories generally look to the “framers” of the Constitution to derive meaning. Different types of originalist theories include:

Textualism: Centers the words of the Constitution. Questions include whether the specific phrase has a plain meaning. Broader questions include inquiry into the Constitution as a whole: surrounding content; repeat of the words elsewhere in the Constitution; absent words.

Original intent: Focuses on the framers of the specific phrase. What did they intend.

Original meaning: Broader than original intent, considers what persons at the time would have understood by the specific phrase.

Original purpose: Broader than original intent, considers what the framers of the “ultimately” meant, even if they did not have a specific intent that governs the problem under consideration.

Pragmatic theories, sometimes also called legal process theories, generally consider the place of the courts in a democracy. The two major types of this theory take somewhat opposing perspectives:

Representation-Reinforcement: Championed by John Hart Ely in his famous work Democracy and Distrust, this theory focuses on the role of the unelected federal judicial branch in a democracy. It posits that the role of the courts should be to “reinforce” representative democracy by preventing a tyranny of the majority and thus, ultimately, to forestall violent uprisings by minorities.

Passive Virtues: Championed by Alexander Bickel in his famous work The Least Dangerous Branch, this theory also focuses on the role of the unelected federal judiciary in a democracy. However, it posits that the role of the courts should be to exercise restraint and allow the democratic process to “work itself out” lest the judiciary itself be compromised. Courts should not decide controversies too early and should always decide controversies on the narrowest grounds possible.

Evolutive theories generally posit that the Constitution should “evolve.” Under this view, the past may be a guide but should not be determinative. Types of evolutive theory include:

Living Constitutionalism: This theory posits that constitutional meaning evolves and it is subject to reinterpretation by each generation. Justice Stephen Breyer has been a strong advocate of this theory, most notably in his 2005 book, Active Liberty: Interpreting Our Democratic Constitution.

Critical Theories: Like living constitutionalism, these theories advocate for a progressive interpretation, but often from a specific vantage point. For example, Critical Race Theory would advocate that the Constitution enshrined slavery and white supremacy, so present interpretive strategies should attempt to reject that legacy. Similarly, Critical Feminist Theory would advocate that the Constitution erases women and preserves patriarchy, so present interpretive strategies should attempt to reject that legacy. There are also queer, dis/ability, class-based, Native, and other theories.

Popular Constitutionalism: This theory calls for de-centering the judiciary and advocates recognizing how “average people” today understand and enact constitutional norms.

Check Your Understanding

1. The late Justice Antonin Scalia, well-known as an orginalist, and Justice Stephen Breyer, advocating living constitutionalism both wrote books advocating their positions and together participated in many public conversations and debates about their respective constitutional interpretative philosophies.

2. Regarding originalist interpretative strategies, consider what type of documentary evidence would be used in making arguments about intent, meaning, and purpose.

3. Judicial activism and judicial restraint overlap with constitutional theories, but theories do not necessarily coincide with “activist” or “restrained” outcomes.

At its most basic, an activist constitutional decision elevates a judicial determination over a democratic one: it declares the “state action” unconstitutional. Likewise, at its most basic, when a court practices judicial restraint, it allows the democratically-enacted government action to stand.

Note also that activist/restrained decisions do not necessarily coincide with “liberal” or “conservative” outcomes.