Simone Lawson
Interpreting the constitution is a complex and challenging task, with significant implications for the rights and lives of citizens. Judges employ various methods, including textual analysis, historical context, tradition, structure, prudence, and natural law, but they may disagree on the Constitution's meaning. The Supreme Court has the power to review the constitutionality of government actions and shape fundamental rights and freedoms. The Preamble, though not decisive, provides clues to the Constitution's meaning and intent, influencing how courts interpret statutes and the spirit of the document. Scholars like Cass Sunstein offer insights and critiques of interpretive approaches, urging consideration of their broad effects on rights, institutions, and democracy.
| Characteristics | Values |
|---|---|
| Textualist approaches | Focus on the words of the Constitution as understood by a certain group of people |
| Originalist approaches | Focus on the original meaning and regard historical practices as irrelevant or illegitimate |
| Pragmatist approaches | Consider the likely practical consequences of particular interpretations of the Constitution |
| Structuralist approaches | Consider the structure of the Constitution and the relationship between citizen and state |
| Functionalism | Treats the Constitution's text as having outlined the relationship among the three federal branches at their apexes, but leaves the distribution of power below the apexes to be worked out in practice |
| Formalism | Adheres closely to the original meaning and regards historical practices as relevant and legitimate |
| Interpretive methods in state constitutional law | Vary across different states, with some states having more interpretative freedom than others |
| Privacy protections | May be limited only by the authority of law, requiring a warrant when private affairs are intruded upon by the government |
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What You'll Learn
Textualist and originalist approaches
Textualism and originalism are terms often used during high-profile Supreme Court cases. Textualism is a theory that advocates for the interpretation of legal texts, including the Constitution, based on the ordinary meaning of the text. Textualists focus on the text itself, ignoring factors outside of it, such as the problem the law addresses or the intentions of its drafters. Instead, textualists consider what the words and phrases in the text meant when a particular constitutional provision was adopted and what a reasonable person would understand the text to mean. It is important to distinguish textualism from strict constructionism, which involves a very literal close reading of the text.
Originalism, on the other hand, treats the Constitution like a statute, giving it the meaning that its words were understood to have at the time they were written. Originalism is sometimes referred to as the theory of original intent. While textualism is a subset of originalism, there are differences between the two approaches. Textualism focuses on interpreting all legal texts by taking the words as they were promulgated to the people and understanding their fairly understood meaning. Originalism, however, specifically refers to interpreting the Constitution based on the words' original meaning.
Some scholars view textualism and originalism as identical enterprises, arguing that they are merely different ways to express the same idea. However, others assert that these approaches are incompatible, particularly when it comes to legislative history. Textualists tend to resist using legislative history in statutory interpretation but may employ intentionalist legislative history when interpreting the Constitution. Originalists, on the other hand, rely on constitutional legislative history to determine the Constitution's original public meaning. While there are differences between textualism and originalism, some prominent legal figures, such as Justice Antonin Scalia and Justice Neil Gorsuch, have identified with both schools of thought.
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Structuralism and its clarity
Structuralism is an intellectual movement and methodological approach that is primarily used in the social sciences. It interprets elements of human culture by examining their interconnectedness and interdependence. It was founded by Wilhelm Wundt, who used controlled methods such as introspection to break down consciousness into its basic elements. Wundt's theory was further developed by his student, Edward B. Titchener, who proposed three elementary states of consciousness: sensations, images, and affections.
Structuralism draws on Ferdinand de Saussure's thesis that language is a 'form rather than a substance'. Saussure's structural linguistics propounded three related concepts: the distinction between 'langue' (an idealized abstraction of language) and 'parole' (language as used daily); the idea that a 'sign' is composed of a 'signified' and a 'signifier'; and the notion that signs gain their meaning from their relationships and contrasts with other signs. The Prague Linguistic Circle, founded in 1926, built on Saussure's work, considering verbal language as multifunctional and inseparable from dynamic and polysemic processes.
In the context of constitutional interpretation, structuralism is a form of reasoning that treats the text as having firmly established the relationship between the three federal branches at their highest levels. However, it leaves the distribution of power below these apex positions to be worked out in practice. This approach, known as functionalism, uses a balancing methodology that weighs competing governmental interests. Critics of structuralism argue that it leads to subjective interpretations that are difficult for judges and citizens to understand and apply. They also argue that it provides "no firm basis for personal rights" as these are considered to derive from the "structure of citizenship".
Structuralism has had a significant influence on various disciplines, including linguistics, semiotics, anthropology, and psychology. It has been applied to the analysis of culture, with proponents arguing that specific domains can be understood by modelling their structures on language. For example, in Lacan's psychoanalytic theory, the structural order of "the Symbolic" is distinct from "the Real" and "the Imaginary". Structuralism has also been used in Marxist theory, with Louis Althusser distinguishing between the structural order of the capitalist mode of production and the actual agents and ideological forms involved in its relations.
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Functionalism and formalism
In the context of American law, functionalism and formalism are two contrasting methods of interpreting the constitution.
Functionalism
Functionalism, or legal functionalism, is a method of interpreting constitutions and statutes that takes into account the functions that law and legal rules serve for society, the branches of government, interest groups, and other legal actors. Functionalists place less emphasis on an absolute separation of power and instead focus on basic checks on decision-making within the branches. They also attach considerable importance to historical practices as a source of constitutional meaning, arguing that when the text of the Constitution is ambiguous, historical practices can provide an objective and neutral basis for decision-making, leading to more predictability and stability in the law.
Formalism
Formalist interpretation, on the other hand, views the separation of powers in its strictest sense, with the court exercising judicial activism. Formalists seek to apply the law without considering the background reasons for a particular law. They generally regard historical practices as irrelevant to interpreting the Constitution. Proponents of formalism argue that it ensures more certainty and predictability in judgments and limits judicial discretion, preventing judges from deciding cases based on their own political views.
Examples
The dichotomy between formalism and functionalism can be observed in several court cases. For example, in INS v. Chadha (1983), the Court ruled that the legislative veto was a violation of bicameralism and the Presentment Clause, demonstrating a formalist approach by prioritizing the strict separation of powers. In contrast, in Mistretta v US (1989), the Court adopted a more functionalist interpretation, establishing the concept of "intelligible principles" and allowing Congress to delegate legislative authority to the Executive branch under certain guidelines.
Nonfunctionalism
While the formalism/functionalism debate dominates interpretive discussions in many areas, a third approach, "nonfunctionalism," has emerged in cases concerning the Constitution's fiscal provisions. Nonfunctionalism reflects the belief that certain clauses of the Constitution no longer serve a purpose and should be construed to accomplish as little as possible or be rendered ineffectual.
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Pragmatist approaches
A pragmatist approach may also consider the extent to which the judiciary could play a constructive role in deciding a question of constitutional law. This could involve an examination of moral concepts underpinning certain terms in the text of the Constitution, such as "equal protection" or "due process of law", and how these should inform judges' interpretations.
The concept of a "national ethos" is also relevant here, where judicial reasoning draws upon the distinct character and values of the American national identity and its institutions to elaborate on the Constitution's meaning.
A “new pragmatism” has been proposed as a two-stage method for deciding constitutional cases. In the first stage, justices would examine all the major modalities of constitutional interpretation, such as text, precedent, originalism, structural principles, and morality. They would then rank the strength of both sides' arguments in each of these areas, perhaps using a numerical scoring system as a guide. After this first stage, a preliminary conclusion would be reached. The second stage would involve an open-minded, inductive, transparent, contextual, and empirical determination of which result makes the most sense.
Pragmatism is seen as a reasonable, pluralistic approach that seeks the best result, rather than ideological absolutes. It is an adaptive approach that understands law as an untidy body of understandings among groups and institutions, inherited from the past and open to change.
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State-level interpretations
Interpreting the constitution at the state level comes with its own set of challenges and considerations. Each state constitution has unique features and provisions that may differ significantly from the federal Constitution. For instance, the constitution of Alabama has 488,000 words, while Indiana's constitution has only 11,000 words. This variation in length and complexity can influence the interpretive methods employed at the state level.
State constitutions often contain individual rights and constraints on government power that are not explicitly protected or addressed in the federal Constitution. This grants state-level judges and justices a degree of independence in interpreting their constitutions, allowing them to focus on broader principles and protections of individual rights. For example, Justice Bolick referred to the state constitution as a "freedom document," emphasising its role in safeguarding individual freedoms.
Textualism and originalism, two interpretive approaches, may manifest differently at the state level compared to the federal level. Textualism, as espoused by Justice Antonin Scalia, advocates for interpreting the Constitution based solely on the text of the relevant provision. However, at the state level, textualism might be influenced by the specific wording of state constitutions, which may differ from federal interpretations.
Originalism, on the other hand, asserts that the Constitution should be interpreted based on its original intent and understanding at the time of its drafting. While originalism can guide state-level interpretations, the evolution of state constitutions over time, through amendments and ballot initiatives, may lead to interpretations that diverge from the original meaning.
Additionally, state-level interpretations must navigate the relationship between state and federal constitutions. While states can expand upon and interpret their constitutions independently, they must also consider federal precedents and the potential for review by higher courts. This dynamic interplay between state and federal law shapes the interpretive landscape at the state level.
In conclusion, interpreting the constitution at the state level involves navigating unique state constitutional provisions, textual and originalist interpretations, and the interplay between state and federal law. State-level judges and justices play a pivotal role in safeguarding individual rights and freedoms within the context of their specific state constitutions while also operating within the broader framework of federal constitutional principles.
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Frequently asked questions
There are several approaches to interpreting the constitution, including textualist, originalist, pragmatist, structuralist, and functionalist. Textualist and originalist approaches focus on the words of the Constitution as understood by a certain group of people. Pragmatist approaches, on the other hand, consider the practical consequences of particular interpretations and select the interpretation that may lead to the best outcome. Structuralist reasoning considers the relationship between the three federal branches, while functionalism uses a balancing approach that weighs competing governmental interests.
Different states may interpret their constitutions differently, and there is no one-size-fits-all approach. Some states may look to how other states have interpreted similar provisions in their constitutions for guidance. However, each state has its own process for amending its constitution, which can make it more or less difficult to make changes.
One example of constitutional interpretation in a court case is United States v. Leon, where the majority held that the Fourth Amendment does not require a court to exclude evidence obtained as a result of law enforcement's good faith reliance on an improperly issued search warrant. Another example is McCulloch v. Maryland, where the Court held that Congress had the power to create the Second Bank of the United States, even though it was not specifically enumerated in the Constitution.
Interpreting the constitution can be challenging due to its complexity and the subjectivity involved. Critics of structuralism argue that it can be difficult for judges to apply and for citizens to understand. Additionally, there may be disagreements about the interpretation of the constitution's text and history, and how it should be applied in modern times.
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