Public Values in Statutory Interpretation

Abstract

A considerable body of recent legal scholarship has suggested that an important role of constitutional interpretation is to articulate and enforce "public values" for our nation.' Public values, as I am using the term, are legal norms and principles that form fundamental underlying precepts for our polity-background norms that contribute to and result from the moral development of our political community. Public values appeal to conceptions of justice and the common good, not to the desires of just one person or group. The nondiscrimination principle-people should not be penalized on the basis of their race, sex or sexual preference, ethnic background, or parentage-is an example of a public value. Through their power of judicial review, courts can overturn legislative enactments that violate our important public values (e.g., by penalizing persons based upon their race). Even if an enactment is not invalidated, the process of constitutional adjudication generates a useful dialogue about what kind of political community we want to be. This body of scholarship remains controversial even while it becomes increasingly influential. The academic debate about the role of courts in articulating and enforcing public values has generated great intellectual excitement in constitutional scholarship.