Constitutional Courts: Two Interpretations, One System

The US Supreme Court is the highest court in the country and has the power of judicial review, which allows it to declare a Legislative or Executive act in violation of the Constitution. The Court's interpretation of the Constitution is paramount, and justices have their own unique ways of interpreting it. In 1987, Professor Richard Fallon of Harvard Law School divided interpreters of the Constitution into two camps: originalists, who believe that only the original understanding of the language and the framers' specific intent should be considered, and interpretivists, who prioritize the specific text and plain language of the Constitution above all else. The former has been criticized as an inflexible and flawed method of interpretation that fails to protect minority rights. Other modes of interpretation include textualism, pragmatism, moral reasoning, and structuralism.

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Originalism: The original understanding of the language and the framer's intent

Originalism is a theory of constitutional interpretation that asserts that the original or 'framers' intent' of the text is the most important factor when interpreting the constitution. This method of interpretation is often considered rigid and inflexible, prioritising the specific text and language of the constitution above all else. This means that originalists believe that the constitution should be interpreted based on the original understanding of the language and the intentions of those who drafted it.

The theory of originalism has been criticised for its lack of flexibility and its inability to adapt to modern times. Critics argue that the original framers of the constitution could not have conceived of many situations that arise in the modern era. As such, interpreting the constitution based solely on its original meaning may fail to protect minority rights, as women and minorities did not have the same rights at the time of the constitution's framing as they do today. For example, the late conservative Supreme Court Justice Antonin Scalia was a textualist, meaning he believed that only the text of the relevant provision should be considered when applying the constitution to a case.

However, others argue that originalism is a valid approach to constitutional interpretation, as it provides a stable and consistent framework for understanding the law. Originalists may also argue that any changes to the constitution should be made through formal amendment processes, rather than through judicial interpretation. This view asserts that the high threshold for formal amendments, which requires a two-thirds majority vote in both houses of Congress and ratification by three-fourths of the states, is necessary to protect the integrity of the constitution.

In response to the concerns surrounding originalism, constitutional scholars have constructed theories to ensure that judges can reach principled judgments in constitutional adjudication. These theories acknowledge the need for the constitution to adapt to a changing society, with judges playing a key role in determining and interpreting the law to meet these changing needs. This view is often referred to as the ''Living Constitution', which asserts that the constitution is a body of law that evolves over time.

Textualism: Interpreting the text of the Constitution directly

Textualism is one of the most common modes of constitutional interpretation. Textualism involves interpreting the text of the Constitution directly, without considering supplementary materials or external factors. Textualists believe that the Constitution should be applied to cases as it is written, with a focus on the specific text and plain language used. This approach prioritises the original understanding of the language and the framers' specific intent.

Textualism is often associated with originalism, a rigid interpretation of the Constitution that upholds the original understanding and intent of the document. Originalists argue that the Constitution should be interpreted based on its original meaning, without considering modern contexts or changing societal needs. This approach has been criticised for its inflexibility and potential failure to protect minority rights, as the original Constitution did not grant the same rights to women and minorities as are recognised today.

One prominent textualist was the late conservative Supreme Court Justice Antonin Scalia. Scalia's textualist approach is outlined in his book "A Matter of Interpretation: Federal Courts and the Law". In this work, he asserts that judges should only refer to the text of the relevant provision when applying the Constitution to a case. Scalia's ideology stands in contrast to that of his jurisprudential opposite, the late Justice Ruth Bader Ginsburg, who argued for a more adaptable interpretation of the Constitution that could evolve with societal changes.

While textualism focuses solely on the text of the Constitution, other modes of interpretation exist, such as pragmatism and moral reasoning. Pragmatists, like Judge Posner, view judges as agents of improvement within certain bounds. They aim to find sensible solutions to problems without being constrained by doctrinal details or precedent. On the other hand, moral reasoning considers the moral principles underlying the Constitution, supplementing the interpretation with external materials when the text is broad or undetermined.

Pragmatism: Judges improve things within certain bounds

Pragmatism is one of the modes of constitutional interpretation. This approach is about judges improving things within certain bounds. Judges who follow this approach are pragmatists and focus on practical restrictions on the exercise of their moral views. They respect specific laws that are deeply entrenched and aim to improve things within the bounds of the law.

Judge Posner, for example, is a pragmatist. In a talk in Chicago, he described his view of constitutional interpretation as follows:

> I’m a pragmatist. I see judges as trying to improve things within certain bounds. There are practical restrictions on the exercise of one’s moral views. There are specific laws that are deeply entrenched. Where the judges are free, their aim, my aim, is to try to improve things. My approach with judging cases is not to worry initially about doctrine [and] precedent ... [,] but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense ... solution.

Judge Posner conceded that the Constitution provides general guidelines that he must respect, such as vague preferences for freedom of speech and religion and against unreasonable searches and seizures. Pragmatists believe that constitutional interpretation should adapt to a changing society.

The opposite of pragmatism is originalism, which is a rigid view that only the original understanding of the language and the framers' specific intent should be considered. Originalists believe that the Constitution's text and plain language are of utmost importance. They argue that the Constitution has a fixed meaning that does not change over time.

However, pragmatists argue that originalism is flawed because the Constitution's contemporaries could not have conceived of some modern situations. Interpreting the Constitution based on its original meaning may fail to protect minority rights because women and minorities did not have the same rights at the time of the Founding as they do today.

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Judicial precedent: The Supreme Court's power to review federal action

The power of the Supreme Court to review federal action is a cornerstone of the US Constitution's system of checks and balances. This power of judicial review was famously asserted in the 1803 case of Marbury v. Madison, where the Court established its authority to review the constitutionality of federal government action. If a federal action is deemed unconstitutional, the Court can strike it down.

The Supreme Court's power to review federal action is not limited to the executive branch. The Court also has original jurisdiction over certain cases, such as suits between states or cases involving ambassadors. The Judiciary Act of 1789 further expanded the Court's original jurisdiction, allowing it to issue writs of mandamus to compel government officials to act in accordance with the law.

The Court's power to review federal action also extends to reviewing and striking down state laws found to be in violation of the Constitution. This power was established in the early 19th century, shortly after the Marbury v. Madison decision.

The Supreme Court's review of federal action is not limited to legislation but also includes executive orders. The Court has, at times, struck down executive orders on the grounds that the president lacked the authority to issue them or that the orders were unconstitutional in substance. In the early 20th century, the Court began to interpret the Due Process Clause of the Fifth and Fourteenth Amendments as guaranteeing "substantive due process," allowing for more stringent scrutiny of executive actions impacting life, liberty, or property rights.

The Supreme Court's interpretation of the Constitution and its application to cases of federal action are not always straightforward. Justices have their own ideological preferences and methods of interpretation, ranging from textualism to a more adaptive approach that considers modern contexts. The Court's decisions can also be influenced by the specific historical context, such as in the case of upholding New Deal economic regulations in the 1930s, which led to a more deferential approach to executive action.

Judicial review: The Supreme Court's power to strike down laws

The US Supreme Court's power to strike down laws is known as judicial review. While the US Constitution does not explicitly define the power of judicial review, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution.

In 1796, the Supreme Court's decision in Hylton v. United States was the first case involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794, which imposed a "carriage tax". The Court performed a judicial review of the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was constitutional.

In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its authority to strike down a law as unconstitutional. In this case, the Supreme Court famously asserted and explained the foundations of its power to review the constitutionality of federal governmental action. During the two decades following its holding in Marbury, the Court decided additional cases that helped to establish its power to review the constitutionality of state governmental action. If a challenged governmental action is deemed unconstitutional, the Court may strike it down, rendering it invalid.

The Supreme Court's power of judicial review is also applicable to executive orders. Federal court review of executive orders is one of the most important facets of the relationship between the executive and judicial branches. In evaluating presidential actions, the courts uphold the separation of powers between Congress and the executive and place a check on executive power. The Supreme Court has struck down executive orders, but it has been cautious when reviewing the exercise of presidential power. Courts may strike down executive orders on the grounds that the president lacked the authority to issue them or when the order is found to be unconstitutional in substance.

The Supreme Court's decisions have had a profound impact on society, with landmark cases involving students, such as Tinker v. Des Moines Independent School District (1969), which held that students could not be punished for wearing black armbands to school to protest the Vietnam War.

The power of judicial review is not without its critics. Some scholars have argued that in striking down laws or actions, the Court has decided cases according to the Justices' own political preferences. In response, constitutional scholars have constructed theories designed to ensure that Justices reach principled judgments in constitutional adjudication.

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