Interpreting The Constitution: Philosophical Approaches Explored

Interpreting the constitution is a complex and important task, and there are several philosophies that justices might follow when approaching it. The philosophy of originalism, for example, is the view that the Constitution should be interpreted in accordance with its original meaning – the meaning it had when it was enacted. Originalists believe that the meaning of the constitution is fixed and does not change over time. Textualism, on the other hand, involves interpreting the law based on the ordinary meaning of the legal text. Justices may also take a pragmatist approach, giving substantial weight to judicial precedent or the consequences of alternative interpretations. Other philosophies include legal structuralism, doctrinalism, balancing, and moral reasoning.

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Textualism: interpreting the law based on the ordinary meaning of the text

Textualism is a philosophy for interpreting the constitution that focuses solely on the text of the document. It involves interpreting the law based on the ordinary meaning of the text, without considering outside influences or the intentions of the authors. Textualists argue that the meaning of the text is clear and should be interpreted literally, without the need for further analysis or interpretation. This approach is often associated with strict constructionism, which advocates that judges should avoid drawing inferences from previous statutes or the constitution and instead focus on the exact wording of the text.

A key example of textualism in action can be seen in Bostock v. Clayton County. In this case, both the majority opinion and the dissents adopted a textualist approach, but they differed in their interpretation of the text. The majority opinion, written by Justice Neil Gorsuch, utilized a very narrow and literal textualist interpretation, which was essential to the ruling and the precedent it set. The dissenters, on the other hand, claimed that the correct textualist interpretation to apply is the ordinary meaning, rather than the literal meaning used by the majority.

Textualism stands in contrast to originalism, which considers the meaning of the Constitution as understood by the populace at the time of its founding. Originalists argue that the Constitution's text had an "objectively identifiable" or public meaning at the time it was written that has not changed over time. They believe that judges should interpret the Constitution based on this original meaning, taking into account the historical, literary, and political context of its framers.

Another approach that differs from textualism is pragmatism, which involves weighing the practical consequences of different interpretations of the Constitution and selecting the interpretation that may lead to the best outcome for society or the political branches. Pragmatism considers the future costs and benefits of an interpretation, as well as the potential role of the judiciary in deciding questions of constitutional law.

Textualism also differs from moral reasoning, which argues that certain moral concepts or ideals underlie some terms in the text of the Constitution, such as "equal protection" or "due process of law". Proponents of moral reasoning believe that these concepts should inform judges' interpretations of the Constitution, rather than relying solely on the text itself.

Originalism: interpreting the constitution in accordance with its original meaning

Originalism is the philosophy that the Constitution should be interpreted in accordance with its original meaning, or the meaning it had at the time of its enactment. Originalists believe that the text of the Constitution had an "objectively identifiable" or public meaning at the time of its founding that has not changed over time. The task of judges and justices is to construct this original meaning by interpreting the historical, literary, and political context of the framers. This approach is sometimes referred to as "strict constructionism" or "textualism".

Originalists argue that the Constitution should be interpreted based on the understanding of the populace or the intentions of the authors at the time of the founding. This method of interpretation focuses on the exact text of the Constitution, rather than drawing inferences from previous statutes or considering the larger constitutional context. Originalists may also consider judicial precedent, looking to the Supreme Court's prior decisions on questions of constitutional law to guide future rulings.

The philosophy of originalism is often associated with the political theories of John Locke and the founders of the American republic, who believed that government powers should be legally limited and that its legitimacy is dependent on observing these limitations. Originalism is also influenced by the principles of republicanism and the social contract, which emphasize the common good and the responsibilities of those in power.

Critics of originalism argue that it can be challenging to determine the original meaning of the Constitution due to changes in language and societal norms over time. Additionally, originalism may be seen as a rigid approach that does not allow for the interpretation of the Constitution to evolve as society progresses.

Despite these criticisms, originalism remains an influential philosophy in constitutional interpretation, particularly in the United States. It provides a framework for interpreting the Constitution that is focused on the original understanding and intentions of its framers, ensuring that the interpretation remains consistent over time.

Moral reasoning: interpreting the constitution by accounting for moral concepts underlying the text

Interpreting the constitution through moral reasoning involves accounting for the moral concepts underlying the text. This approach, often referred to as the "ethos of the law", suggests that certain moral ideals or principles underpin specific terms in the constitution, such as "equal protection" and "due process of law".

Supporters of this method argue that it leads to more candid opinions, as judges often rely on moral arguments but disguise them as textual or precedential arguments. They also contend that the constitution was designed as a flexible instrument intended to evolve over time, allowing judges to incorporate contemporary values when interpreting it. Additionally, moral reasoning can help fill in gaps in the text by addressing situations that may have been unforeseen at the time of its drafting.

Critics of moral reasoning in constitutional interpretation argue that courts should not act as moral arbiters. They claim that ethical arguments are based on principles that are not objectively verifiable and may require judges to choose between competing moral conventions. As a result, critics worry that judges might decide cases based on their personal policy views, which could lead to undemocratic outcomes.

The moral reading of the constitution is not inherently liberal or conservative. Judges with conservative political convictions will interpret abstract constitutional principles conservatively, while those with liberal convictions will interpret them liberally. The moral reading allows for the evolution of understanding, ensuring that mistakes or misunderstandings of moral principles by the authors are not enshrined in constitutional law forever.

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Pragmatism: giving weight to judicial precedent or the consequences of alternative interpretations

Pragmatism is a philosophy for interpreting the constitution that gives weight to judicial precedent and the consequences of alternative interpretations. This approach often involves the court weighing or balancing the probable practical consequences of one interpretation of the constitution against other interpretations. There are two main types of pragmatist approaches.

The first type of pragmatist approach weighs the future costs and benefits of an interpretation to society or the political branches, selecting the interpretation that may lead to the perceived best outcome. For example, in the Bostock v. Clayton County case, the majority opinion, written by Justice Neil Gorsuch, utilized a very narrow and literal textualist interpretation, which was essential to the ruling and the precedent it set. The dissenters, on the other hand, claimed that the correct textualist interpretation to apply is ordinary meaning and not the literal meaning used by the majority opinion.

The second type of pragmatist approach considers the extent to which the judiciary could play a constructive role in deciding a question of constitutional law. This approach is particularly relevant in common law jurisdictions such as the United States, Australia, and Canada, where the supreme courts can overturn laws made by their legislatures through judicial review. For instance, the United States Supreme Court has decided on topics such as the legality of slavery in the Dred Scott decision and abortion rights in the Roe v. Wade decision.

In conclusion, pragmatism as a philosophy for interpreting the constitution involves weighing judicial precedent and the potential consequences of alternative interpretations. By considering the costs and benefits of different interpretations and the role of the judiciary, pragmatism seeks to find the interpretation that may lead to the best outcome for society or the political branches.

Legal structuralism: interpreting a constitutional principle by reading it against the larger constitutional document

Legal structuralism is a method of interpreting a constitutional principle by reading it against the larger constitutional document. This means that judges try to understand how a particular ruling fits within the larger structure of the entire constitution. This approach encompasses both functionalist and formalist approaches.

The functionalist approach, also known as functionalism, treats the Constitution's text as having clearly outlined the relationship between the three branches of the federal government at their highest levels. However, it leaves the distribution or sharing of power below these top levels to be worked out in practice. An example of functionalism in action is the McCulloch v. Maryland case. In this case, the Court held that Congress had the power to establish the Second Bank of the United States, even though this power was not specifically enumerated in the Constitution. The Court considered whether Congress had such authority under its enumerated powers when viewed in conjunction with other factors.

On the other hand, the formalist approach, or formalism, adheres closely to the original meaning of the text and considers historical practices as largely irrelevant or illegitimate. This approach is exemplified in the Morrison v. Olson case, where the Court employed a functionalist approach and upheld the provisions in the Ethics in Government Act of 1978, allowing for the appointment of an "independent counsel" to investigate and prosecute certain high-ranking government officials. The formalist approach contrasts with functionalism by utilizing a balancing methodology that weighs competing governmental interests.

Legal structuralism is just one of several philosophies for interpreting the constitution. Other methods include originalism, which interprets the Constitution according to its original meaning in the historical, literary, and political context of its framers; textualism, which interprets the law based on the ordinary meaning of the legal text; and doctrinalism, which considers how various parts of the Constitution have been "shaped by the Court's own jurisprudence". Additionally, in the United States, balancing is used when judges weigh one set of interests or rights against another, and founders' intent involves judges attempting to understand the intentions of the authors of the Constitution.

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