Fact, Opinion, And The Constitution: Interpreting The Law

The interpretation of the US Constitution is a complex and multifaceted process, with several key methods and styles influencing how justices interpret the law. Originalist approaches consider the meaning of the Constitution as understood by its founders, while textualist approaches focus solely on the text of the document. Structuralist interpretations consider the entire text of the Constitution, while living constitutionalists believe that the meaning of the text changes over time as social attitudes evolve. Judicial precedent, constitutional and ratification convention debates, pragmatic and moral considerations, and legislative practices also play a role in constitutional interpretation. The interpretation style of justices can vary, with some favouring the government and others the individual, and this can impact their voting behaviour and decision-making processes.

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Originalist interpretation

Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text should be given the original public meaning that it would have had at the time that it became law. Originalism is usually contrasted with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, and that it can be modified without the adoption of a formal constitutional amendment. Originalists, on the other hand, argue for democratic modifications of laws through the legislature or through constitutional amendment. They believe that the Constitution's text had an "objectively identifiable" or public meaning at the time of its founding that has not changed over time, and the task of judges and Justices is to construct this original meaning.

Originalists base the meaning of a constitutional provision on how the public which ratified it would have generally understood it. They believe that the original meaning of constitutional texts can be discerned from dictionaries, grammar books, and other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debates that gave rise to a constitutional provision. Originalism is grounded in the two-century-long movement toward constitutionalism, and it is behind the U.S. Constitution itself.

Originalism was proposed by jurist Robert Bork in his 1971 law review article, "Neutral Principles and Some First Amendment Problems", published in The Yale Law Journal. Bork noted that without specification in a constitutional text, judges are free to input their own values while interpreting a constitution. To avoid this, he proposed that judges should "take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules." By following the original meaning, an originalist Supreme Court would therefore "need make no fundamental value choices," and its rulings would be restrained.

Originalism has been criticised for projecting modern ideas onto historical texts, leading to a distorted interpretation of the Constitution that may not accurately reflect the Founders’ intentions. Critics argue that originalists do not take history seriously and fail to appreciate how earlier constitutional assumptions diverge from modern constitutional thinking. They argue that originalists end up inventing history rather than recovering it, and that their interpretation of liberty is at odds with that of the Founders.

Textualist interpretation

Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasises how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists generally believe that there is an objective meaning to the text and do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. Textualism is concerned primarily with the plain or popular meaning of the text of the Constitution. Textualists are generally not concerned with the practical consequences of a decision; rather, they are wary of the Court acting to refine or revise constitutional texts.

Textualism is often used in conjunction with other methods of constitutional interpretation. The Court will often look to the text first before consulting other potential sources of meaning to resolve ambiguities in the text or to answer fundamental questions of constitutional law not addressed in the text. For example, in Trop v. Dulles, a plurality of the Court held that the Eighth Amendment prohibited the government from revoking the citizenship of a U.S. citizen as punishment. The Court first looked briefly to the text of the Amendment, noting that the "exact scope" of the phrase "cruel and unusual punishment" in the Eighth Amendment had not been "detailed by the Court". The plurality then turned to other modes of interpretation, such as moral reasoning and historical practices, in deciding the case.

Textualism is sometimes referred to as a subset of originalism. Originalism is a theory of constitutional interpretation rooted in history that considers the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution's text had an "objectively identifiable" or public meaning at the time of the Founding that has not changed over time. The difference between textualism and originalism is one of scope, not philosophy. Originalism specifically refers to interpreting the Constitution based on the meaning the words carried at the time of writing, whereas textualism refers to interpreting all legal texts by the ordinary meaning of the text, setting aside factors not in the text itself.

Harvard Law School Professor Adrian Vermeule has recently challenged textualists with a new theory that he calls "Common Good Originalism". He argues that conservative judges should infuse their constitutional interpretations with "substantive moral principles that conduce to the common good". Textualists have criticised this theory as nothing more than an embrace of the excesses of living constitutionalism.

Structuralist interpretation

Interpreting the constitution involves using traditional legal tools that consider the internal aspects of the document, such as its text and structure, to determine its meaning. This is done through various modes of interpretation, such as textualism, originalism, and structuralism, which we will explore further.

Structuralism is a method of interpreting the Constitution that considers the entire text rather than focusing on a particular part. This approach aims to provide a clearer understanding of vague provisions and their application to specific circumstances. By taking into account the document as a whole, structuralism is believed by its proponents to offer a stronger foundation for personal rights than other methods like textualism or moral reasoning.

In the case of Crandall v. Nevada, the Supreme Court demonstrated the application of structuralist interpretation. The Court struck down a state law imposing a tax on individuals leaving or passing through the state. While the Constitution does not explicitly mention a right to travel between states, the Court inferred this right from the structural relationship between citizens and federal and state governments. They reasoned that citizens might need to travel between states to exercise other constitutional rights, thus establishing the right to travel as a key constitutional right.

Structuralism also encompasses a form of reasoning known as functionalism. This approach treats the Constitution's text as having clearly defined the relationship between the three federal branches at their highest levels while leaving the distribution or sharing of power below these apexes to be determined through practice. Functionalism employs a balancing act, weighing competing governmental interests as one of its primary methodologies. An example of functionalism in action is McCulloch v. Maryland, where the Court held that Congress had the authority to establish the Second Bank of the United States, even though this power was not specifically enumerated in the Constitution.

Critics of structuralism argue that it does not always provide clear answers and may be challenging for judges to apply consistently. They contend that other modes of interpretation, such as judicial precedent, are more effective in guiding judicial decision-making. Judicial precedent refers to the Supreme Court's prior decisions on constitutional law, providing principles, rules, or standards for future cases with similar facts. However, the Court's latitude in interpreting prior decisions can make it difficult to determine the precise influence of precedent on their rulings.

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Judicial precedent

The interpretation of the Constitution is a complex and multifaceted process that involves examining the text, historical context, and judicial precedents. One of the critical aspects of constitutional interpretation is judicial precedent, which plays a pivotal role in shaping the application of constitutional principles. Judicial precedent refers to the previous decisions made by the Supreme Court on questions of constitutional law. These precedents serve as a foundation for future judicial decisions, providing guidelines, principles, and standards that can be applied to similar cases.

The concept of judicial precedent is deeply entrenched in the American legal system. When faced with a constitutional question, the Supreme Court justices often look to past rulings to guide their interpretation and application of the law. This approach ensures consistency and stability in the law, as it allows for the accumulation and evolution of legal principles over time. By following precedents, the Court promotes predictability and helps maintain public trust in the legal system.

The weight given to judicial precedent can vary among different justices and legal schools of thought. Originalists, for example, emphasize the original meaning of the Constitution as understood by the populace at the time of the Founding. They argue that the text of the Constitution has an "objectively identifiable" meaning that remains static and unchanged over time. In contrast, progressive interpreters or living constitutionalists believe that the Constitution is a living document that evolves as society's attitudes change. They contend that the interpretation of the Constitution should adapt to modern contexts and circumstances.

The impact of judicial precedent on constitutional interpretation is significant. In some cases, a single precedent may heavily influence the Court's decision-making process. For instance, in Planned Parenthood v. Casey, the Court relied on Roe v. Wade as a controlling precedent, reaffirming the holding that a woman has a protected liberty interest in terminating her pregnancy. However, the Court also possesses the latitude to interpret and apply precedents broadly or narrowly, depending on the specific circumstances of each case.

While judicial precedent plays a crucial role, it is not the sole determinant of constitutional interpretation. The Supreme Court may also consider other factors, such as constitutional text, structure, historical context, moral principles, and pragmatic considerations. Additionally, the Court's interpretation can be influenced by the personal ideologies and interpretations of the justices themselves. As a result, the interpretation of the Constitution remains a dynamic and evolving process, shaped by a multitude of factors, including judicial precedent.

Living constitutionalism

The concept of a "living constitution" is one that is highly debated. It is the viewpoint that the US Constitution holds a dynamic meaning even without being formally amended. It is the belief that the Constitution should evolve, change over time, and adapt to new circumstances.

Arguments for a Living Constitution

Proponents of a living constitution argue that it is inevitable that the Constitution will change, as it has already done so since its inception. They contend that an unchanging Constitution would be a hindrance to progress and would not fit modern society. The world has changed in numerous ways since the Constitution was written, including advancements in technology, changes in the economy, international situation, and social mores. Supporters of this interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organicists. They argue that the constitutional framers wrote the document in broad and flexible terms, creating a dynamic, "living" document. This interpretation is also referred to as judicial pragmatism, as it provides a more malleable tool for governments to adapt to society's needs.

Arguments Against a Living Constitution

Critics of the idea of a living constitution argue that it undermines democracy by allowing judges to change the meaning of the Constitution. They believe that legislative action, through the amendment process, better represents the will of the people in a constitutional republic. They argue that the Constitution is supposed to be a rock-solid foundation, embodying fundamental principles that should remain constant. Additionally, they contend that a living Constitution is manipulable, subject to the ideas and interpretations of judges or those in power at a particular time. This interpretation is often regarded as a form of judicial activism.

Alternative Interpretations

There are several alternative modes of constitutional interpretation, including originalism, textualism, and structuralism. Originalists believe that the Constitution's text had an ""objectively identifiable" meaning at the time of its founding that has not changed, and the task of judges is to construct this original meaning. Textualist approaches focus solely on the text of the document, while structuralism considers the entire text of the Constitution rather than a particular part.

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