Malcolm Rivera
The interpretation of the Constitution is a complex and contentious issue, with a variety of sources and methods used by the Court to inform its decisions. The Supreme Court's power of judicial review has been a source of controversy, with the potential for unelected judges to overturn the decisions of democratically elected officials. The Court's interpretation methods are guided by certain modes, which consider the relationships between the three branches of the federal government, federalism, and the relationship between the government and the people. Historical practices and long-standing precedents are also important sources of constitutional meaning, particularly when the text is unclear. The Court may also consider the intent of the framers, the fixed meaning of the Constitution at the time of its founding, and contemporary understandings. The interpretation of the Constitution is influenced by the unique perspectives and ideologies of the justices, who must also consider their relationships with colleagues and other branches of government.
| Characteristics | Values |
|---|---|
| Structuralism | Drawing inferences from the design of the Constitution |
| Historical Practices | Prior decisions of political branches, especially long-established, historical practices |
| Originalism | Original public meaning of the Constitution |
| Moderate Interpretivism | Contemporary understandings and the framers' general or abstract intent |
| Pragmatism | Balancing contemporary costs and benefits and examining prior cases |
| Textualism | Following the text of the relevant provision when applying the Constitution to a case |
| Liberalism or Conservatism | Shown to be a significant predictor of a justice's votes on the Court |
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What You'll Learn
Historical practices
However, critics argue that relying solely on historical practices may lead to results inconsistent with the original meaning of the Constitution. There is also a risk of legitimizing long-standing practices that offend modern moral principles, such as slavery or segregation. Additionally, it may undermine the political branches' ability to innovate and find novel solutions to old problems.
Furthermore, it is argued that historical sources may differ, and it might be challenging to illuminate patterns in historical practices. This methodology could allow judges to select sources that support their preferred historical practices, leading to subjective interpretations. Nevertheless, historical practices provide valuable context and contribute to the interpretation of the Constitution, especially when considered alongside other modes of interpretation.
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Structuralism
In the case of McCulloch v. Maryland, the Court held that Congress had the power to create the Second Bank of the United States, even though this power was not specifically enumerated in the Constitution. This is an early example of functionalism, a form of structural reasoning.
Chief Justice John G. Roberts Jr. applied structuralism in National Federation of Independent Business v. Sebelius, where he analyzed the structure of the Constitution and the powers it grants to Congress to uphold most of the Affordable Care Act.
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Pragmatism
The Supreme Court has relied on certain "methods" or "modes" of interpretation when deriving meaning from the text of the Constitution. There is significant debate over which sources and methods of construction the Court should consult when interpreting the Constitution. This is closely related to disputes about whether and how the Court should exercise the power of judicial review.
One school of thought, represented by Judge Posner's pragmatic constitutionalism, argues that the text is irrelevant to Supreme Court Justices when deciding constitutional questions. Instead, they focus on balancing contemporary costs and benefits and examining prior cases. This approach emphasizes adaptability and ensuring that the Court's decisions allow the government to function properly, protect minority rights, and safeguard the basic structure of government.
Judge Posner's pragmatic approach has been described as a common law approach, where the Justices rely primarily on the Court's prior decisions when deciding cases. This view suggests that the Constitution means what the judges say it means and that they have the power to determine the sources of authority on which constitutional rulings rest.
However, others, such as Barnett, argue that constitutional interpreters have underlying normative commitments that cannot be ignored in favour of wholly constructed interpretations. This perspective emphasizes the relevance of the constitutional text and its history.
The interpretation styles of justices are an important factor in their decision-making. These styles can be originalist or progressive, with textualism being one of the primary originalist styles. Textualists, like Justice Antonin Scalia, believe that only the text of the relevant provision should be considered when applying the Constitution to a case. In contrast, justices like Ruth Bader Ginsburg took a progressive approach, arguing that interpretations of the Constitution should adapt to a changing society.
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Originalism
Originalists argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence. Originalism is usually contrasted with Living Constitutionalism, which asserts that a constitution should evolve and be interpreted based on the context of current times. Living constitutionalists believe that the meaning of the constitutional text changes over time as social attitudes change, even without the adoption of a formal constitutional amendment. Originalists, on the other hand, believe that the Fourteenth Amendment always forbade racial segregation, from its adoption in 1868 until the present day.
Proponents of originalism argue that it produces objective legal rulings and that it is a democratic method of modifying laws through the legislature or through constitutional amendment. Originalists also argue that without a specification in a constitutional text, judges are free to input their own values while interpreting a constitution. By following the original meaning, an originalist Supreme Court would "need make no fundamental value choices," and its rulings would be restrained.
Critics of originalism argue that originalists have projected modern ideas onto historical texts, leading to a distorted interpretation of the Constitution that may not accurately reflect the Founders' intentions. Originalists are accused of misunderstanding how 18th-century Americans conceptualized constitutionalism, and therefore end up inventing history rather than recovering it. Critics also argue that some aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them along with the times.
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Textualism
Critics of textualism, such as Harvard Law School Professor Adrian Vermeule, argue that this approach ignores the evolving nature of societal standards and that interpretations should be infused with "substantive moral principles that conduce to the common good." However, textualists respond that such an approach leads to inconsistencies and a free-for-all of living constitutionalism.
In practice, the Supreme Court often employs a textualist approach in conjunction with other methods of constitutional interpretation. The Court may first look to the text of the Constitution to resolve ambiguities or answer fundamental questions not addressed in the text before consulting other sources. This combination of textualism with other interpretive methods allows for a more flexible approach to constitutional interpretation.
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Frequently asked questions
The sources for constitutional interpretation include the text of the Constitution, constitutional and ratification convention debates, prior Court decisions, pragmatic or moral considerations, and long-standing congressional or legislative practices.
There are several modes of constitutional interpretation, including originalism, progressive, original intent, textualism, and strict constructionism. Originalism refers to the fixed meaning of the Constitution as understood by at least the public at the time of its founding. Progressive interpretation ensures the Court's decisions allow the government to function properly, protect minority rights, and safeguard the basic structure of government from interference.
While justices have their ideological preferences, these preferences are constrained by precedent, judicial review, and adherence to constitutional provisions. Studies have shown that a justice's ideology is a significant predictor of their votes on the Court. However, justices also have their own unique ways of interpreting the Constitution, and it is essential to consider their constitutional interpretation styles.
Historical practices, particularly the long-established practices of political branches, are an important source of constitutional meaning. Courts refer to historical practices when interpreting cases involving questions about the separation of powers, federalism, and individual rights, especially when the text of the Constitution does not provide a clear answer.
The Supreme Court's power of judicial review allows it to review the constitutionality of governmental action and interpret the Constitution accordingly. This power is closely related to the debate over the sources and methods of constitutional interpretation. Some scholars argue that the Court may strike down laws or actions based on the Justices' political preferences.
