Simone Lawson
The interpretation of the Constitution is a complex and multifaceted process that involves legal scholars, judges, and the Supreme Court. While the text of the Constitution serves as a foundational document, it is often vague and outdated, leading to various interpretation styles. These include original intent, textualism, originalism, progressive, and living document approaches. The Supreme Court plays a pivotal role in interpreting the Constitution through its authority of judicial review, established in the Marbury v. Madison case in 1803. The Court's prior decisions on constitutional law set precedents that guide future interpretations, ensuring consistency and stability in the law. However, some critics argue that overreliance on precedent can perpetuate erroneous constructions of the Constitution. Judicial decision-making is influenced by factors such as ideology, experience, and interpretation styles, with conservative justices generally ruling in favor of the government. Ultimately, the interpretation of the Constitution is a dynamic process that adapts to evolving societal values and priorities.
| Characteristics | Values |
|---|---|
| Judicial Precedent | The most commonly cited source of constitutional meaning is the Supreme Court’s prior decisions on questions of constitutional law. |
| Pragmatism | The Court weighs or balances the probable practical consequences of one interpretation of the Constitution against other interpretations. |
| Primacy of Precedent | Decisions that adhere to principles set forth in prior, well-reasoned written opinions lend legitimacy to the Court's role as a neutral, impartial, and consistent decision-maker. |
| Original Intent | Justices with an original intent interpretation style are more likely to vote in favor of the government than textualists in Fourth Amendment cases. |
| Textualism | Fourth Amendment scholars disagree with originalists, arguing that the Amendment was meant to be a protection against warrantless or unreasonable searches, not just unspecific warrants. |
| Progressive | Justices with a progressive interpretation style have a lower probability of supporting the government’s position. |
| Conservative | A more conservative justice is more likely to vote in favor of the government. |
| Individual | A more liberal or pro-individual justice is less likely to vote in favor of the government. |
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What You'll Learn
Judicial precedent
However, some argue that overreliance on judicial precedent can be problematic. For example, certain precedents might have been wrongly decided, and relying on them would only perpetuate their erroneous construction of the Constitution. Additionally, the Supreme Court's power of judicial review allows it to review the constitutionality of governmental action and strike down any action that is found to be unconstitutional. This power, established in the famous case of Marbury v. Madison in 1803, gives the Court the authority to interpret the Constitution and apply it to specific governmental actions.
The Supreme Court's interpretations of the Constitution are highly influential and have shaped the body of constitutional law today, which bears little resemblance to the original text of the Constitution. Some judges, like Judge Posner, have even stated that they do not consider the text of the Constitution when deciding cases, instead focusing on creating rules that make sense in the present. This controversial approach emphasizes the importance of debating today's values and priorities rather than interpreting vague and outdated constitutional text.
Quantitative studies have also been conducted to understand the effects of ideology and interpretation styles on the Supreme Court justices' decision-making. These studies suggest that interpretation styles can predict judicial decisions to some extent, although other factors may also come into play. For example, justices with a progressive interpretation style are less likely to support the government's position, while those with prior prosecutorial experience are more likely to rule in favor of the government.
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Pragmatism
A pragmatist approach can also involve the Court considering the extent to which the judiciary could play a constructive role in deciding a question of constitutional law. This gives the judiciary an active role in shaping the future direction of the law, rather than simply adhering to past interpretations.
The pragmatist approach is just one of several models of judicial decision-making. The legal model, for example, asserts that judges are neutral arbiters of the law, implying that their personal characteristics and interpretations should not influence their decisions. However, in reality, a judge's constitutional interpretation style can affect their voting behaviour. For example, originalist justices are more likely to rule in favour of the government in disputes about searches and seizures, whereas progressive justices have only a 29% probability of supporting the government's position.
Despite these different approaches and models, the most commonly cited source of constitutional meaning is the Supreme Court's prior decisions on questions of constitutional law. This is known as judicial precedent or stare decisis. This provides principles, rules, and standards to govern future judicial decisions in similar cases. This approach provides consistency and stability in the law. However, some argue that overreliance on precedent can be problematic, as it may perpetuate erroneous past decisions.
In conclusion, while pragmatism is an important approach to constitutional interpretation, it is just one of several models that shape how the Supreme Court decides on the legality of new interpretations. The Court's prior decisions play a significant role in shaping future decisions, but the Court also has the power to shape the future direction of the law through a pragmatist approach.
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Judicial review
The US Constitution's Article V grants the judicial branch the authority to apply and interpret the law. The Supreme Court's power to review the constitutionality of federal and state government action is referred to as judicial review. The Supreme Court's prior decisions on constitutional law are the most frequently cited source of constitutional meaning. Judicial precedent provides future cases with possible principles, rules, and standards.
The concept of pragmatism is also considered in the judicial review process, where the Court weighs the practical consequences of different interpretations of the Constitution. This involves considering the future costs and benefits of an interpretation to society and the political branches, selecting the interpretation that may lead to the best outcome. Another type of pragmatist approach involves assessing the judiciary's role in deciding a question of constitutional law.
There are different constitutional interpretation styles among Supreme Court justices, including original intent, textualism, other originalist, progressive, and living document. These styles can influence their voting behaviours and how they interpret the Constitution. For example, justices with an original intent interpretation style are more likely to rule in favour of the government in Fourth Amendment cases involving searches and seizures. On the other hand, justices with a progressive interpretation style have a lower probability of supporting the government's position.
Some scholars argue that the text of the Constitution is less important than the Supreme Court's interpretations. They believe that constitutional law is about creating rules that are relevant to modern times rather than strictly adhering to an outdated document. This view has sparked controversy, with some accusing judges of violating their oath to uphold the Constitution. However, others defend this approach, stating that the Supreme Court follows a common law approach where justices rely on the Court's prior decisions when ruling on new cases.
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Originalism
Law professor Raoul Berger expanded on this theory in his 1977 book "Government by Judiciary", arguing that rulings by the Warren and Burger Courts were illegitimate as they deviated from the Constitution's original intent. In 1985, Edwin Meese, Attorney General under President Ronald Reagan, also promoted a form of originalism in a speech before the American Bar Association. Meese's view was rejected by Justice William Brennan, who claimed that the original intent of the Founding Fathers was indiscernible, and the text could only be understood in present terms.
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Progressivism
Progressives have historically had a fraught relationship with the Constitution, which was ratified in 1788 for an agrarian society of slaveholding white males. This has resulted in sclerotic political institutions that are ill-equipped to meet the demands of a modern, global, and pluralistic society. Progressives have also been characterised as disdainful of the Constitution's limits on government power and eager to expand its understanding of individual rights.
However, some argue that the original Constitution establishes a structure of divided government that is a necessary precondition for a constitutional democracy with robust protections for individual rights. Progressives recognise the limits of both the original Constitution and its amendments and aim to enshrine the equality gains that have been won through legislation and court decisions. For example, the Nineteenth Amendment extended the franchise to women, and through subsequent legislative and judicial interpretation, women gained some measure of legal protection against sex-based discrimination.
Progressives view the Constitution as a living document that should be interpreted through the lens of current-day society. This approach, known as Living Constitutionalism, allows for growth and change in the interpretation of the Constitution to address modern problems that the Founding Fathers could not have imagined. For instance, in Griswold v. Connecticut, the Supreme Court established a "right to privacy" using a Living Constitutionalist approach, even though this right is not expressly written in the Constitution.
In terms of decision-making, progressives favour a pragmatic approach, where the Court weighs the probable practical consequences of different interpretations of the Constitution and selects the interpretation that may lead to the best outcome for society or the political branches. This may involve considering the extent to which the judiciary can play a constructive role in deciding a question of constitutional law. Additionally, moral reasoning plays a role, where certain moral concepts or ideals, such as "equal protection" or "due process of law," are interpreted by judges to guide their understanding of the Constitution.
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Frequently asked questions
The most commonly cited source of constitutional meaning is the Supreme Court's prior decisions on questions of constitutional law.
The judicial branch applies and interprets the laws.
Scholars have identified three primary models of judicial decision-making: legal, attitudinal, and strategic. The legal model is the earliest of the three and asserts that judges are neutral arbiters of the law.
