Judicial Interpretation: Flexing The Constitution

The US Constitution gives the judicial branch the power to interpret laws, and the framers of the Constitution did not specify how the judicial branch should interpret the document to allow for adaptable governance. This flexibility is essential for the evolving nature of law and society. The judiciary's independence is key to this, as it allows judges to reach their own conclusions and protect against unjust laws. There are several modes of constitutional interpretation, including formalism, pragmatism, originalism, and structuralism. These approaches consider the text, historical context, and moral reasoning behind the Constitution to guide judicial decisions.

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Original Meaning: Understanding the Constitution as the populace did at the time of its founding

The United States Constitution is a federal constitution that was heavily influenced by the study of the Magna Carta, other federations, and Enlightenment rationalism. The original meaning of the Constitution refers to the understanding of the document as perceived by the populace at the time of its founding. This originalist approach focuses on the meaning of the Constitution as understood by the populace at the time, suggesting that the text had an "objectively identifiable" or public meaning that has not changed over time.

The Constitution was signed on September 17, 1787, by 38 delegates, with one additional signature by George Reed on behalf of John Dickinson of Delaware, bringing the total to 39 signatures. The delegates were tasked with revising the existing government but ended up creating a new one. The Constitution's founding was influenced by the fear that the young country was on the brink of collapse due to the inadequacies of the Articles of Confederation, which gave the Confederation Congress limited power and could not regulate commerce or print money.

The original meaning of the Constitution is important because it provides a framework for understanding the intentions of the founders and the context in which it was created. The originalist approach to interpretation considers the historical context, the political philosophies of the time, and the intentions of the framers. This approach aims to preserve the original understanding of the Constitution and prevent it from being interpreted too loosely or deviating from its original purpose.

Judicial interpretation plays a crucial role in allowing flexibility within the Constitution. Judges and justices are responsible for interpreting the Constitution and constructing its original meaning. They consider the text, the historical context, and the intentions of the framers to guide their decisions. The Supreme Court's decisions on constitutional law serve as precedents that influence how the Constitution is understood and applied. This judicial review process allows the Court to examine federal legislation, the federal executive, and state branches of government to determine their constitutionality and strike them down if found unconstitutional.

The interpretation of the Constitution is not limited solely to textual analysis but also considers the practical consequences and the moral reasoning behind certain terms. Pragmatist approaches involve weighing the potential future costs and benefits of different interpretations and selecting the one that may lead to the best outcome for society. Additionally, moral concepts such as "equal protection" and "due process of law" are considered, with the understanding that these ideals should inform judges' interpretations.

Judicial Precedent: Using the Supreme Court's prior decisions on constitutional law as a guide

Judicial precedent is a key mode of constitutional interpretation, and it is the most commonly cited source of constitutional meaning. This is where the Supreme Court's prior decisions on constitutional law are used as a guide for future cases. The concept is known as stare decisis, which is Latin for "let the decision stand" or "to stand by things decided". It is a foundational concept in the American legal system, providing consistency and making interpretations of the law more predictable and less random.

Stare decisis holds that courts and judges should honour precedent—that is, the decisions, rulings, and opinions from prior cases. This means that all courts are bound to follow earlier court decisions, with vertical stare decisis dictating that the decisions of higher courts take precedence over lower courts. For example, a state Supreme Court decision would be binding for all lower courts. The Supreme Court can be more flexible and take into account other facts of the case. It can also overrule its precedent from time to time, selecting cases and issues that allow it to reconsider precedent on its own terms.

Judicial precedent provides possible principles, rules, or standards to govern future judicial decisions. It allows for consistency and predictability, which in turn gives a sense of certainty, fairness, and flexibility to the law. This is because judicial precedent is a response to a real situation, not a hypothetical one, and so has a foundation of pragmatism.

However, there are times when following precedent may lead to unjust outcomes. In these cases, judges may offer reasons or legal nuances to avoid following precedents or to overturn prior rulings. For example, in Brown v. Board of Education (1954), the Supreme Court directly overturned the precedent of Plessy v. Ferguson (1893), which had held that "separate but equal" public accommodations did not violate the Constitution.

Pragmatism: Weighing the practical consequences of one interpretation against others

Pragmatism is a mode of constitutional interpretation that involves weighing the practical consequences of one interpretation against others. This approach allows the court to select the interpretation that may lead to the best outcome for society or the political branches.

One form of pragmatism involves considering the future costs and benefits of a particular interpretation. For example, the court might evaluate the potential impact of a decision on public policy or the allocation of resources. This approach enables the court to make decisions that are mindful of the practical implications and potential challenges that may arise.

Another type of pragmatist approach involves assessing the role of the judiciary in deciding a question of constitutional law. Here, the court reflects on the extent to which its involvement is necessary or constructive. This reflection ensures that the judiciary respects the separation of powers and does not overstep its boundaries.

The pragmatist approach to constitutional interpretation is essential for adaptable governance. By considering the practical consequences, the court can make decisions that are responsive to the evolving needs of society. This flexibility allows the law to remain relevant and effective, even as circumstances change over time.

Additionally, pragmatism can help reconcile tensions between different branches of government. By weighing the practical consequences, the judiciary can navigate complex power dynamics and maintain a balance between the executive, legislative, and judicial branches. This careful consideration helps prevent overreach and ensures that each branch operates within its intended scope.

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Moral Reasoning: Interpreting the Constitution through the lens of moral concepts like equal protection

Interpreting the US Constitution through the lens of moral concepts is an approach that argues that certain moral ideals underpin some of the terms in the text, such as "equal protection" and "due process of law". This approach, often called the "ethos of the law", suggests that these moral concepts should guide judges' interpretations.

For example, in the case of Bolling v. Sharpe, the Court struck down racial segregation in DC public schools as a violation of the Fifth Amendment's Due Process Clause. The Court reasoned that the Due Process Clause, derived from American ideals of fairness, implicitly guarantees equal protection. This interpretation holds that the Fifth Amendment prohibits the federal government from allowing segregation in public schools.

Proponents of moral reasoning in constitutional interpretation argue that it allows for more flexibility for judges to incorporate contemporary values and results in more candid opinions. For example, in Lawrence v. Texas, the Court struck down a Texas law banning private, consensual same-sex sexual activity as a violation of the Due Process Clause of the Fourteenth Amendment. The Court derived general moral principles from the broad language of the Fourteenth Amendment, which pertained to the limits of government authority over the individual.

Critics of this approach, however, argue that courts should not be moral arbiters. They contend that ethical arguments are based on principles that are not objectively verifiable and may require judges to choose between competing moral conventions. Opponents believe that this could lead to cases being decided according to judges' own policy views, which is undemocratic.

The originalist approach to constitutional interpretation, on the other hand, focuses on the meaning of the Constitution as understood by the populace at the time of its founding. Originalists believe that the text of the Constitution had an "objectively identifiable" public meaning that has not changed and that judges' task is to construct this original meaning. This approach differs from the moral reasoning approach, which allows for more flexibility in interpretation to accommodate changing values and societal progress.

Formalism: Adhering closely to the structural divisions in the Constitution to preserve liberty

Formalism is a school of thought in law and jurisprudence that assumes that the law is a system of rules that can determine the outcome of any case, without reference to external norms. In the context of constitutional interpretation, formalism focuses on the structural divisions in the Constitution, emphasising that adhering closely to these rules is necessary for preserving liberty.

The structural divisions in the Constitution refer to the relationships between the three branches of the federal government (legislative, executive, and judicial), commonly known as the separation of powers. Formalism argues that by adhering to these structural divisions, liberty is preserved. This means that each branch has its own distinct role and powers, and by sticking to these divisions, no one branch can accumulate too much power, thus protecting individual freedoms.

An example of this is seen in the case of Chadha, where the Court's opinion held that the structural relationship between the legislative and executive branches, as established by the Constitution, forbade the "one-House legislative veto." The Court's decision was based on a strict adherence to the structural divisions in the Constitution, specifically Article I, Sections 1 and 7, which outline the procedure for legislative action.

Justice Scalia is often associated with legal formalism and has applied this approach in several notable cases. In Hamdi v. Rumsfeld, Justice Scalia argued for a formalist interpretation of the Suspension Clause to protect individual liberty and ensure political accountability. He asserted that the Authorization for Use of Military Force (AUMF) did not indicate Congress's intent to suspend the writ of habeas corpus, even during wartime exigencies.

However, critics argue that Justice Scalia's formalist jurisprudence has also made it more challenging for ordinary citizens to hold the political branches accountable. Cases like Citizens United and McCutcheon have increased the influence of wealthy donors in politics, and Shelby County weakened the Voting Rights Act, potentially leading to systematic disenfranchisement. While Justice Scalia's formalist approach aims to preserve liberty, it has had unintended consequences on political participation and accountability.

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