Constitutional interpretation is both the process by which the American Constitution is construed and the study of that process. The latter is principally an academic activity while the former art is practiced daily by government officials, private lawyers, and ordinary citizens. Constitutional interpretation is the process by which the meaning of the Constitution is determined. Constitutional adjudication is the process by which justices enforce the Constitution. Courts have no roving commission to strike down all government actions thought unconstitutional. A justice may exercise the power of judicial review only in an appropriate case or controversy, when the constitutional issue is justiciable, and when the constitutional violation is sufficiently clear to warrant judicial invalidation.
The Constitution as Law
Although usually taken for granted, that the ways in which the American Constitution may be legitimately interpreted are similar to the ways in which lawyers and judges construe legal documents is significant. This is partly a consequence of the U.S. Constitution being a written document, indeed the first modern written constitution of a nation‐state. The important American innovation was not the writing per se, but rather the political theory whereby the state was objectified and made a mere instrument of the sovereign will that lay in the people. The distinction between the sovereign and the organs of state, which seemed so absurd to minds before the eighteenth century, was an indispensable premise for a comprehensive, written constitution that conveyed limited powers. By this means, the United States put the power of the state under law. A written constitution made constitutional interpretation along customary legal modes of thinking feasible. A limited government, put under the written constraints of a superior legal instrument, will inevitably introduce the modalities of legal reasoning and argument into decisions affecting the legitimate power of the state.
One way of understanding the centrality of having a text to construe is to look at the role of texts in other legal contexts. A written constitution is like a trust agreement. It specifies what powers the trustees are to have and endows these agents with certain authority delegated by the settlors who created the trust. Because the American Revolution and the Declaration of Independence put sovereignty in the hands of the people, the “trustees” in the constitutional scheme (the government) are not identical with the “settlor” (the sovereign) and therefore are not at liberty to alter the trust agreement and change the limits of their authority. From this agreement must come decisions about the extent of that authority. A written constitution is not only a set of rules; it is a way of creating rules. Like the trust agreement, the governing text will constrain the agents that it creates only if the methods of interpretation compel such constraints. When Thomas Jefferson wrote that “Our peculiar security is in the possession of a written constitution,” he meant that the constraints manifest in a written charter would act as safeguards against a governmental usurpation of powers that belonged to the people. Because Jefferson, as principal drafter of the Declaration of Independence, believed that the state was the creation of sovereign power, not the other way around, he insisted on a written Constitution and a written Bill of Rights. The phrase “inalienable rights” that appears in the Declaration means that the people cannot alienate—that is, sell or trade—their rights because to do so would render the people less than sovereign.
By relying on a written instrument to perfect the constitutional understanding, the framers of the Constitution introduced the habits and style of Anglo‐American legal argument into the politics of the state. This determined the foundation for constitutional interpretation in the United States. Since the Constitution was the supreme law, its terms had to govern; since it was a comprehensive law, it would be implicated in every legal decision; since it was written law, it had to be construed, both to give it supreme effect and to apply it in situations not explicitly anticipated in the text. And because it was law, this was to be done according to the prevailing methods of legal construction. The ways in which Americans interpret the Constitution could have been different; indeed, the forms of constitutional discourse are very different in other societies. For Americans, however, these ways have taken the forms of common‐law argument, largely those forms prevailing at the time of the drafting and ratification of the U.S. Constitution. Thus the methods hitherto used to construe deeds, wills, contracts, and promissory notes, methods familiar to the mundane subjects of the common law, became the methods of constitutional construction once the state was put under law
Modalities of Constitutional Argument
These methods of reasoning and ways of making arguments determine the ways in which constitutional propositions are characterized as valid from a legal point of view. These methods might be divided or recategorized in different ways, but the following six forms or modalities of constitutional argument are widely accepted: (1) historical—relying on the intentions of the framers and ratifiers of the Constitution (see Original Intent; History, Court Uses of); (2) textual—looking to the meaning of the words of the Constitution alone, as they would be interpreted by an average contemporary American today; (3) structural— inferring structural rules from the relationships that the Constitution mandates; (4) doctrinal—applying rules generated by precedent; (5) ethical—deriving rules from those moral commitments of the American ethos that are reflected in the Constitution; and (6) prudential—seeking to balance the costs and benefits of a particular rule. A modality is the way in which a proposition is characterized as true.
History
May a state validly enforce a law that makes it a crime to procure an abortion? Constitutional arguments from a historical perspective are: the framers and ratifiers of the Due Process Clause of the Fourteenth Amendment intended to prohibit such legislation because the ratification debates of the period demonstrate a concern to protect previously disfranchised persons from debasement by the state; or the framers and ratifiers did not intend to do so because blacks, not women, and voting, not the intimate acts of private persons, were the subjects of their debates; or we cannot ascertain what their intention was regarding the state's coercive power to compel women to bear children because the debates, while broad in subject matter, are fragmentary in detail. Arguments that rely on this interpretive modality might also approach the abortion question as follows. Did the framers and ratifiers of the Fourteenth Amendment intend to countenance extant state laws forbidding abortions? Because these statutes were unmentioned in the debates, were they thus tacitly tolerated? Or did they intend to overturn them by means of the amendment? Or are their intentions unclear? Because the framers made general references to an evolving standard of protection from state intrusion, did they mean to delegitimate such statutes? Or is the historical record simply unclear as to those anti‐abortion laws that were on the statute books at the time of ratification? In any case, determinations of constitutionality will be made on the basis of historical evidence about the intentions of the framers and ratifiers of the relevant clauses of the Constitution.
Often the historical approach is confused with textual argument because historical argument usually refers to a specific text of the Constitution. Historical or “originalist” approaches to construing the text, however, are distinctive in their reference to what a particular provision is supposed to have meant to the ratifiers. What matters is the public meaning of the constitutional text at the time the provision was ratified, not private understandings between particular framers or what that constitutional language might mean at the present. When Chief Justice Roger B. Taney in Dred Scott v. Sandford (1857) construed the scope of the diversity jurisdiction in Article III in order to determine whether a slave could seek freedom through a diversity suit before a federal court, he wrote:
Often the historical approach is confused with textual argument because historical argument usually refers to a specific text of the Constitution. Historical or “originalist” approaches to construing the text, however, are distinctive in their reference to what a particular provision is supposed to have meant to the ratifiers. What matters is the public meaning of the constitutional text at the time the provision was ratified, not private understandings between particular framers or what that constitutional language might mean at the present. When Chief Justice Roger B. Taney in Dred Scott v. Sandford (1857) construed the scope of the diversity jurisdiction in Article III in order to determine whether a slave could seek freedom through a diversity suit before a federal court, he wrote:
We must inquire who, at that time (1787–1788), were recognized as the citizens of a state, whose rights and liberties had been outraged by the English government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms. … We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. (pp. 407–409)
Justices Antonin Scalia and Clarence Thomas are the leading proponents of originalism on the contemporary Court. “When interpreting” constitutional provisions, Thomas wrote in McIntyre v. Ohio Elections Commission (1995), “we must be guided by their original meaning, for ‘the Constitution is a written instrument’” (p. 359). Justice Scalia in that case agreed that the Constitution bears its original meaning and is “unchanging” (p. 371). Justices Scalia and Thomas in that case, however, disputed whether the persons responsible for the Constitution had intended to protect anonymous pamphleteering. Similar historical disputes have taken place in other contemporary cases. Justice John Paul Stevens's majority opinion in U.S. Term Limits, Inc. v. Thornton (1995) concluded that the framers had not intended to allow states to add to the qualifications stated in Article I for members of Congress. Justice Thomas in dissent claimed otherwise.
Dred Scott demonstrates other limitations of historical argument. Although the decision—which denied diversity jurisdiction to slave litigants and repudiated the Missouri Compromise—is regarded with shame by many constitutional scholars, there is nothing erroneous about Taney's historical argument. Perhaps, however, the framers and ratifiers did not intend that their contemporary opinions on every subject should govern every subsequent argument. More importantly, it is anachronistic and presumptuous to assume that we can determine what the framers and ratifiers of a particular provision, drafted a century or two before the present, would have preferred to happen in a world they could no more anticipate than we can successfully imagine theirs. We assume that Jefferson would be opposed to the intrusiveness and scope of the federal government today because he opposed Federalist policies so vehemently in his own day. But it is not clear whether he would have opposed the expansion of federal authority to eradicate the effects of slavery, an evil he also opposed but despaired of ever correcting.
Dred Scott demonstrates other limitations of historical argument. Although the decision—which denied diversity jurisdiction to slave litigants and repudiated the Missouri Compromise—is regarded with shame by many constitutional scholars, there is nothing erroneous about Taney's historical argument. Perhaps, however, the framers and ratifiers did not intend that their contemporary opinions on every subject should govern every subsequent argument. More importantly, it is anachronistic and presumptuous to assume that we can determine what the framers and ratifiers of a particular provision, drafted a century or two before the present, would have preferred to happen in a world they could no more anticipate than we can successfully imagine theirs. We assume that Jefferson would be opposed to the intrusiveness and scope of the federal government today because he opposed Federalist policies so vehemently in his own day. But it is not clear whether he would have opposed the expansion of federal authority to eradicate the effects of slavery, an evil he also opposed but despaired of ever correcting.
Text
One of the constitutional questions in the Dred Scott case—who are the “citizens” for purposes of diversity jurisdiction (see Citizenship)—provides an example for the textual modality. The text of the Constitution provides that “The judicial Power shall extend … to Controversies … between Citizens of different States …” (Article III, section 2). Does this text of the Constitution, to the average person at present, appear to declare that a former slave can bring suit in federal court (because the text's use of the word citizen is not qualified by race)? Or does the text appear to deny this jurisdiction (because the text's use of the word citizen rather than person implies a distinction by race)? Or is the language simply too vague to say whether a suit between a black American in one state and his former employer, a white American resident in another state, is a “controversy … between Citizens of different States”?
Textual approaches are not inevitably more progressive than originalist approaches. Sometimes the text can be a straitjacket, confining the judge within language that would have been different had its drafters foreseen later events. Is twentieth‐century wiretapping prohibited by the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Chief Justice William Howard Taft engaged in textual argument in a case where federal prohibition officers obtained incriminating information by intercepting telephone conversations of defendants:
Textual approaches are not inevitably more progressive than originalist approaches. Sometimes the text can be a straitjacket, confining the judge within language that would have been different had its drafters foreseen later events. Is twentieth‐century wiretapping prohibited by the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Chief Justice William Howard Taft engaged in textual argument in a case where federal prohibition officers obtained incriminating information by intercepting telephone conversations of defendants:
The amendment itself shows that the search is to be of material things—the person, the house, his papers or his effects. The amendment does not forbid what was done here for there was no seizure. The evidence was secured by the sense of hearing and that only. The language of the amendment cannot be extended and expanded. (Olmstead v. United States, 1928, p. 464).
Textual argument is associated with the dominant figure of the postwar Supreme Court, Justice Hugo Black, and his frequently voiced assertion that the Constitution contained various “absolutes.” Black cited the First Amendment's provision that “Congress shall make no law … abridging the freedom of speech” as an example of a textual absolute on the grounds that if he read such a provision to the average citizen, it would be interpreted to mean “no law” whatsoever could constitutionally be applied to abrogate speech (see Speech and the Press). To the objections that such an interpretation would strike down virtually all obscenity laws and a great many defamation, conspiracy, and anti‐incitement statutes, Black simply interposed the text without further argument. Textual argument is thus often juxtaposed against judicial balancing tests that would concede, for example, that a particular regulation limits speech but that require the circumstances and necessity of the regulation to be taken into account.
Structure
Can a Congressional committee issue a subpoena for the disclosure of the president's working notes and diaries? Structural modes of argument would argue that the institutional relationships promulgated by the Constitution provide such power because Congress must have full information in order to fulfill its statutory function; or deny it because the president must be able to preserve the integrity of his deliberations free from the self‐consciousness that follows from the anticipation of private debate that will be made public; or speak equivocally because in some contexts the need for public information outweighs the damage to the executive process of policy formulation. Recent examples of structural arguments in separation of powers cases include Clinton v. Jones (1997), permitting the president to be a defendant in a civil lawsuit; Morrison v. Olson (1988), upholding the appointment of a special prosecutor despite her ambivalent status as an executive officer with responsibilities to the judicial branch; and, most importantly, Immigration and Naturalization Service v. Chadha (1983), which struck down the legislative veto (See Separation of Powers).
The second part of McCulloch v. Maryland (1819), the principal foundation case for constitutional analysis, relied almost wholly on structural approaches. In determining whether a Maryland tax on the federally chartered Bank of the United States could be enforced, Chief Justice John Marshall refused to specify what particular text supported his argument and explicitly rejected reliance on historical arguments, preferring instead to state the rationale on inferences from the structure of federalism. A federal structure could not be maintained, he concluded, if the states, whose officials are elected by a state's constituency, could tax the agencies of the federal government present in a state and thereby levy a tax on a nationwide constituency. By taxing a federal agency the state would be able to manipulate directly the choices made by the federal government—effectively prohibiting some choices by making them expensive—without the check of being answerable to affected constituents. The constitutional structure would not tolerate such a practice even though the text and the ratification debates did not explicitly condemn it.
Structural arguments are less intuitively obvious than arguments from the text or history of the Constitution. Arguments in this modality usually follow a pattern: first, an uncontroversial statement about a constitutional structure is introduced; second, a relationship is inferred from this structure; third, a factual assertion about the world is made; finally, a conclusion is drawn that provides the rule in the case.
Thus in Printz v. United States (1997), Justice Scalia addressed the question of whether a state officer may be required to implement a federal handgun law. He reasoned: (1) the Constitution sets up a federal system, that is, a system in which state and national officers are independent of each other (structure) (see Federalism); (2) if the national government could control the actions of state and local officials, we would cease to have a federal system (relationship); (3) requiring local officials to help implement national law would effectively make those officials agents of the national government and thus be incompatible with a federal system (conclusion).
Prudence
Can a state require mandatory testing for the AIDS virus antibodies? One might argue that it is wise because an epidemic can only be controlled by public health measures; or that it is unwise because of the distress caused to those who will falsely test positive and because the intrusiveness of testing an overwhelmingly virus‐free population outweigh the benefits of locating a few victims; or that it is unclear on the present facts whether it is wise to permit such testing because the efficacy of the tests and the scope of the epidemic are subject to inconclusive debate. These questions propose an evaluation from a prudential point of view.
In the first half of the twentieth century, the prudential mode of constitutional argument was associated with doctrines that sought to protect the political position of the courts, though it had long been a staple of constitutional argument in the other branches. The national crises of depression and world war provided reason for the courts to consider the practical effects of constitutional doctrine as elements in the rationales underpinning doctrine. One such case arose when, in the depths of the midwestern farm depression, the Minnesota legislature passed a statute providing a moratorium from foreclosure for those unable to pay a mortgage. On its face, this statute seemed to vindicate the fears of the framers that state legislatures would compromise the national credit market by enacting debtor relief statutes and also seemed to violate the Contracts Clause of Article I that was the textual product of such concerns. Nevertheless the Court upheld the statute, observing that an emergency existed in Minnesota that furnished a proper occasion for the exercise of the reserved power of the state to protect the vital interests of the community (Home Building and Loan Association v. Blaisdell, 1934). The Court, by a 5‐to‐4 vote, recognized the political expediency of the state's action and acquiesced in it.
The prudential approach is not confined to problems a nation encounters in emergencies. Prudential argument is based on facts, as these play into political and economic policies. From a prudential point of view, the legal rule to be applied is derived from a calculus of costs and benefits, after the facts are taken into account. Often this calls for a balancing of costs and benefits since more than one policy will be at stake. Sometimes the pragmatic problem may be the costs of protecting a particular constitutional right and may require abandonment of essential constitutional commitments. Justice Lewis Powell advanced such a prudential view in McCleskey v. Kemp (1987) when rejecting a claim that statistical evidence of racial bias required a judicial decision striking down the procedures Georgia used to impose capital punishment. “McCleskey's claim,” his majority opinion declared, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. … Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges (pp. 314–317).
Doctrine
When a judge states that a neutral, general principle derived from the case law construing the Constitution should apply (that a particular precedent is on “all fours” with the instant case) or that it does not apply (the present case is one of “first impression”) or that it may apply (the precedents are divided, with authority for competing positions), such arguments are made in a doctrinal mode. Doctrinal arguments are not confined to arguments originating in judicial or administrative case law; there are also precedents from other institutions, such as the practices of earlier presidents or Congress.
This mode of argument is the stuff of common‐law legal reasoning. First‐year law courses are devoted to its mastery, and it is not unique to constitutional law. Consider as an example the question: to what extent can a state constitutionally provide financial aid to parochial schools? Suppose, for example, that parochial school students are given a cash allowance by the state to subsidize their education. Does this offend the Establishment Clause of the First Amendment because the state is bearing costs that would otherwise be born by church members? A judge confronting such a case might begin, not by reading the text of the First Amendment that states a rule in rather general terms, but by turning to precedent to find similar cases providing authoritative decisions. In the area of Establishment Clause jurisprudence a great deal of constitutional doctrine has been developed in numerous cases. The standards these cases develop and apply can be stated as legal rules. The case “on point,” whose facts are similar in relevant aspects, is Zelman v. Simmons‐Harris (2002), which sustained the power of local authorities to provide vouchers for children attending private and parochial church‐related schools. In Zelman the Supreme Court treated the provision of vouchers as a form of public welfare legislation, noting that “public funds were made available to religious schools only as a result of numerous, private choices of individual parents of school‐age children” (p. 650). The majority further reasoned that vouchers benefited the child in the same way as did police protection at crossings near the church school, fire protection for the school building, connections to the building for sewage disposal, and public highways and sidewalks by which one traveled to a parochial school.
This mode of argument is the stuff of common‐law legal reasoning. First‐year law courses are devoted to its mastery, and it is not unique to constitutional law. Consider as an example the question: to what extent can a state constitutionally provide financial aid to parochial schools? Suppose, for example, that parochial school students are given a cash allowance by the state to subsidize their education. Does this offend the Establishment Clause of the First Amendment because the state is bearing costs that would otherwise be born by church members? A judge confronting such a case might begin, not by reading the text of the First Amendment that states a rule in rather general terms, but by turning to precedent to find similar cases providing authoritative decisions. In the area of Establishment Clause jurisprudence a great deal of constitutional doctrine has been developed in numerous cases. The standards these cases develop and apply can be stated as legal rules. The case “on point,” whose facts are similar in relevant aspects, is Zelman v. Simmons‐Harris (2002), which sustained the power of local authorities to provide vouchers for children attending private and parochial church‐related schools. In Zelman the Supreme Court treated the provision of vouchers as a form of public welfare legislation, noting that “public funds were made available to religious schools only as a result of numerous, private choices of individual parents of school‐age children” (p. 650). The majority further reasoned that vouchers benefited the child in the same way as did police protection at crossings near the church school, fire protection for the school building, connections to the building for sewage disposal, and public highways and sidewalks by which one traveled to a parochial school.
Applying these principles to the illustrative question, the judge might write: “Zelman can be distinguished from the instance case because the program in Zelman provided vouchers for all students, whereas here only some students, the parochial ones, are given cash allowances. While doubtless the legislature had a secular purpose in mind, the effect of these allowances was in fact to make the parochial schools more attractive to parents than their secular counterparts and thereby advance the cause of religious institutions. Accordingly, the program must be held unconstitutional.”
Or the judge might write: “Zelman, which also involved vouchers for parochial school students, governs this case. Here as there, the state's program provides aid to students and their parents and not—as in cases that have struck down state assistance in this area—direct assistance to church‐related schools. Its secular purpose, to expand school choice for parents of children in failing schools, is apparent. Like school lunches, public health services, and secular textbooks, the vouchers provided here confers a benefit on the parochial student that is at parity with what the secular student receives.”
In either case, the judge has applied a rule derived from the relevant case law. The rule is neutral as to the parties; that is, it applies equally to Catholic, Jewish, and atheist claimants and does not vary depending on who is bringing or defending the suit. And the rule is general; that is, it applies to all cases in which the state is giving assistance to religious institutions and is not confined to the facts of the original case that gave birth to the rule.
In either case, the judge has applied a rule derived from the relevant case law. The rule is neutral as to the parties; that is, it applies equally to Catholic, Jewish, and atheist claimants and does not vary depending on who is bringing or defending the suit. And the rule is general; that is, it applies to all cases in which the state is giving assistance to religious institutions and is not confined to the facts of the original case that gave birth to the rule.
The commitment to neutral, general principles does not mean that cases cannot be overruled. A particular precedent may be overruled because it does not comport with a persuasive reading of the cases on which it relied, or those from a competing line of doctrine originating in wholly distinct facts but progressively encroaching on the area of its operation. More significantly, doctrinal argument is not confined to the application of stare decisis, that is, the strict adherence to cases previously decided, because one of the assumptions of American doctrinalism is that the Supreme Court may reverse precedent. This would appear to follow from the family of modalities—that provide alternative legal rules—and the supremacy of the Constitution to the acts of government (including its judicial branch). The Court is empowered, indeed obligated, to overrule itself when it is persuaded that a particular precedent wrongly construed the Constitution. The justices in Lawrence v. Texas (2003) overruled Bowers v. Hardwick (1986) on the ground the former decision sustaining a ban on sodomy was constitutionally wrong when handed down and had been undermined by subsequent judicial and legislative precedents. By comparison, the plurality in Planned Parenthood v. Casey (1992) refused to overrule Roe v. Wade (1973) partly because the shaky constitutional foundations of the constitutional right to abortion had been buttressed by subsequent judicial precedents and social developments.
Ethos
Ethical arguments denote an appeal to those elements of the American ethos that are reflected in the Constitution. The fundamental American constitutional ethos is the idea of limited government, which presumes that all residual authority remains in the private sphere. Thus when we argue that a particular constitutional conclusion is required, permitted, or forbidden by the American ethos that has allocated certain decisions to the individual or to private institutions, we are arguing in an ethical mode.
Ethical arguments arise as a consequence of the fundamental constitutional arrangement by which rights, in the American system, are largely defined as those choices beyond the power of government to compel. Some constitutional commentators insist that elected officials have a constitutional duty to provide the economic and social conditions under which individuals can flourish, but few insist that such constitutional responsibilities are judicially enforceable in the absence of a violation of clear constitutional rights.
Structural and ethical arguments share some similarities. Each is essentially an inferred set of arguments. Structural argument infers rules from the powers granted to governments; ethical argument, by contrast, infers rules from the powers denied to government. The principal error regarding ethical argument is the assumption that any statute or executive act is unconstitutional if it causes effects that are incompatible with some preferred elements of the American ethos. Such an assumption equates ethical argument, a constitutional form, with moral and political argument generally. The American constitutional ethos is largely confined to the reservation of powers not delegated to a limited government.
A hypothetical example shows the basic pattern of ethical argument. Suppose a state judge offers a choice of a thirty‐year prison sentence or impotence‐inducing medical treatment to a convicted sex offender. The defendant accepts the latter option and is released on probation on terms that require that this pledge be fulfilled by systematic drug induced impotence. If the probationer were to cease taking the prescribed drug and his probation revoked, a constitutional challenge to the terms of his probation might take the following form.
First, there is no express constitutional power in federal courts to implement a program of eugenics. Indeed the reservation to the individual of the decision whether to have children is deeply rooted in the American belief in the integrity of the individual conscience, which is reflected in several parts of the Constitution. Second, eugenics programs are not an appropriate means ancillary to any express power that is allocated to government; therefore there is no federal power to assume this otherwise private authority. Third, those means denied the federal government are also denied the states. And, fourth, the hypothetical sentence would compel a man to comply with a eugenics scheme that rendered him ineligible to procreate.
The element of the American ethos at stake is the reservation to individuals and families of the freedom to make certain kinds of decisions. Similar arguments are found in cases in which a state criminalized particular forms of sexual behavior between consenting adults (Lawrence v. Texas, 2003); banned the use of birth control and abortion (Griswold v. Connecticut, 1965; Roe v. Wade, 1973); attempted to bar schools from teaching foreign languages (Meyer v. Nebraska, 1923); in which a state passed a compulsory education act requiring every school‐age child to attend public school, which implicitly outlawed private schools (Pierce v. Society of Sisters, 1925); in which a local zoning ordinance intended to exclude communes was applied to prohibit a grandmother from living with her grandchildren (Moore v. East Cleveland, 1977); and in which parents sought to end the artificial nutrition of their severely brain‐injured daughter (Cruzan v. Director, Missouri Department of Health, 1990). Each of these examples can be stated in the form of an ethical argument. For example, the Lawrence arguments could be framed thus: (1) there is no express constitutional power to regulate sexuality; (2) a statute outlawing consensual sexual behavior between adults is not an appropriate means associated with any express power (such as regulating commerce or providing for armed forces); (3) decisions about sexuality are reserved to individuals; (4) a statue banning sodomy amounts to a scheme to mandate prescribed forms of intimate behavior and family life.
Academic and Political Commentary
Commentary on these modes of constitutional argument by scholars and critics constitute the field of constitutional interpretation outside the courts and legislatures. From the mid‐1950s onward, the interpretation of the American Constitution has assumed a central place in American public life. Racial segregation, abortion, the powers of the presidency, and impeachment have all been made to turn on these methods of construction. At the same time, constitutional interpretation has become a rich academic field in its own right
The seminal works in the academic field were Charles Black's Structure and Relationship in Constitutional Law (1969) and Alexander Bickel's The Least Dangerous Branch (1962). Black's remarkable study isolated one particular form of argument, the structural and established criteria for the making and assessing such arguments. Bickel did much the same for prudential argument, tracing its lineage to Justice Louis D. Brandeis and demonstrating a family of related judicial techniques. John Hart Ely's Democracy and Distrust (1980) was the first sustained effort to answer the countermajoritarian objection to judicial review (the argument that overturning a legislative decision by a court amounts to a reversal of democratic, majoritarian choices) by relying on one of the classic forms of argument as preeminent. Ely divided the forms of argument into the interpretivist, that is, historical, textual, and structural forms, and noninterpretivist, that is, ethical, prudential, and doctrinal forms (see Interpretivism and Noninterpretivism). Paul Brest, in an important series of articles and an influential casebook, wrote about interpretation as argument and isolated some of the paradigmatic forms of argument. Constitutional Fate (1982), by Philip Bobbitt, identified and elaborated the six forms of argument described here. Bobbitt argued that there could be no hierarchy of arguments. He maintained that the countermajoritarian objection was fundamentally nonsensical since legitimacy was conferred not by majoritarianism but by following accepted conventional forms, which could not be genuinely applied in the absence of judicial review. At the same time, questions of interpretation came to the forefront of literary criticism, and the influence of semiotics, especially the school of deconstruction associated with Jacques Derrida, Paul de Man, Michel Foucault, and others, was felt in the field of constitutional interpretation.
Constitutional interpretation outside the courts also became a field of academic study. Sandy Levinson and Walter Murphy challenged common notions that courts had the ultimate authority for determining constitutional meanings. Louis Fisher detailed how constitutional interpretation typically involved a dialogue between courts and elected officials. Keith Whittington's Constitutional Construction (1999) detailed how elected officials resolved constitutional questions that were hardly ever adjudicated by courts.
In the political arena, attention also was focused on the methods of constitutional interpretation. The inspired but methodologically problematic opinion in Brown v. Board of Education (1954) invited such scrutiny. Perhaps the most influential member of the judiciary, Judge Learned Hand, implicitly criticized Chief Justice Earl Warren's opinion in lectures published as The Bill of Rights (1958). With this controversy, the countermajoritarian objection was revived and with it the debate about the proper methods of constitutional interpretation. Controversial Warren Court human rights and criminal process cases in the 1960s fueled this controversy, which erupted with new vehemence when the Supreme Court decided the abortion case Roe v. Wade. The debate was framed in terms of the legitimacy of judicial review itself rather than in terms of its various methods.
In the political arena, attention also was focused on the methods of constitutional interpretation. The inspired but methodologically problematic opinion in Brown v. Board of Education (1954) invited such scrutiny. Perhaps the most influential member of the judiciary, Judge Learned Hand, implicitly criticized Chief Justice Earl Warren's opinion in lectures published as The Bill of Rights (1958). With this controversy, the countermajoritarian objection was revived and with it the debate about the proper methods of constitutional interpretation. Controversial Warren Court human rights and criminal process cases in the 1960s fueled this controversy, which erupted with new vehemence when the Supreme Court decided the abortion case Roe v. Wade. The debate was framed in terms of the legitimacy of judicial review itself rather than in terms of its various methods.
More fuel to these fires was added by a series of Rehnquist Court decisions limiting the power of the national government to regulate firearms (Printz v. United States, 1997; United States v. Lopez, 1995), punish violence against women (United States v. Morrison, 2000), and adopt affirmative action programs (Adarand Constructors, Inc. v. Pena, 1995). By the turn of the twenty‐first century, liberals were increasingly likely to argue that the constitutional powers of government should be broadly construed and courts should defer to legislative judgments on constitutional issues, while conservatives championed judicial review and the constitutional limits of government power. Many of the most salient questions of constitutional interpretation at present have been debated almost entirely outside the courtroom. These matters include whether lying about a sexual affair under oath is an impeachable offense and whether congressional approval is constitutionally necessary for a president to initiate combat abroad.
Originalism is presently at the center of many constitutional controversies. Edwin Meese, attorney general of the United States in the second Reagan administration, insists that justices should be confined to “strict construction” of the Constitution. He and other officials associated with the conservative wing of the Republican party hold that only historical, textual, and structural arguments provide a legitimate basis by which to evaluate statutes and practices for their constitutionality. Justice Brennan throughout his career took a more expansive view, stressing the prudential and ethical modalities of judicial review. Such modalities underlie such judicial opinions as Lawrence v. Texas.
Nowhere was this conflict more clearly and dramatically presented than in the Senate hearings on the nomination of Robert Bork to the Supreme Court (see Senate Judiciary Committee). To the question of how a judge should go about finding the law, Bork testified that the only legitimate way “is by attempting to discern … the intentions of … those … who ratified our Constitution and its various amendments.” Repeatedly Bork denied that there was “any legitimate method of constitutional reasoning” that would support controversial holdings that he opposed, but he was scrupulous about not criticizing them as policy. His rejection by the Senate may be taken as an affirmation of the legitimacy of the decisions that, as Bork argued, cannot be rationalized on strict constructionist grounds. All successful Supreme Court nominees in the wake of the Bork hearings have at a minimum indicated an open mind on the legitimate forms of constitutional argument.
Nowhere was this conflict more clearly and dramatically presented than in the Senate hearings on the nomination of Robert Bork to the Supreme Court (see Senate Judiciary Committee). To the question of how a judge should go about finding the law, Bork testified that the only legitimate way “is by attempting to discern … the intentions of … those … who ratified our Constitution and its various amendments.” Repeatedly Bork denied that there was “any legitimate method of constitutional reasoning” that would support controversial holdings that he opposed, but he was scrupulous about not criticizing them as policy. His rejection by the Senate may be taken as an affirmation of the legitimacy of the decisions that, as Bork argued, cannot be rationalized on strict constructionist grounds. All successful Supreme Court nominees in the wake of the Bork hearings have at a minimum indicated an open mind on the legitimate forms of constitutional argument.
Each of the various forms of argument can be used to construct an ideology, a set of political and practical commitments whose values are internally consistent and externally distinct from those of competing ideologies constructed around other modalities. Some persons believe that one particular modality represents the only legitimate means of interpreting the constitution (e.g., historical argument) since it is verifiable by a resort to materials (e.g., the evidence of the intentions of the framers) that are legitimated according to a particular political theory of interpretation. This has led some commentators to argue that the modalities of argument are no more than instrumental, rhetorical devices to be deployed in the service of the political ideologies of which they are a subsidiary part. Other critics have concluded that the modalities must be ranked in priority. In either case, some standard external to constitutional interpretation is imported into the decision making.
According to the latter argument, everyone agrees that the Constitution is law. Therefore, the Constitution does not merely mean what particular people want it to mean. If it did, it would not be law. The problem is that it is not always clear what the Constitution means, how it is to be applied or interpreted. Reasonable people disagree about what it means. Some think that a Constitution that guarantees “the equal protection of the laws” requires race‐conscious affirmative action policies in order to remove the effects of past and present discrimination (a prudential argument); others think that a state that engages in affirmative action is violating that same guarantee (a textual argument). In hard cases, two or more legitimate modalities will conflict. Since the Constitution itself does not direct how it is to be interpreted—does not say which modality is to be used—those who interpret the Constitution have to look to something other than the various legitimating forms of argument. This means that the interpretation of the Constitution must inevitably be based on principles that are external to the words of the Constitution itself. Those principles have to be created rather than found; the Constitution does not contain instructions for its own interpretation.
This does not mean that the Constitution could mean anything at all, that it is “indeterminate” regarding its appropriate interpretation. Sometimes the resort to interpretive principles admits of only one answer. Additionally, what various constitutional authorities think, and what they will say about questions not yet decided but likely to arise soon, can be predicted with some accuracy. Moreover, some interpretations are better than others; that is, only some correspond to the various legitimating modalities. Some interpretations of ambiguous provisions will produce an unacceptable increase in judicial discretion (prudential); others will leave politically weak groups at the mercy of the state (structural); others will make liberty too fragile (ethical); others will be insufficiently respectful of the claims of original intent (historical). So constitutional interpretation is not indeterminate even though it does not always yield unique answers.
How shall we choose, however, among good interpretations? What is the legal basis for this and why is it legitimate? Perhaps importing an external standard to govern such choices—say, a preference for liberty or equality or efficiency, which would allow us to justify our decisions—sacrifices their legitimacy, since it requires a rule that is not generated by the legitimating modalities of argument. Perhaps we cannot, in fact, give good reasons that explain our choice of one legitimate outcome over a different, equally legitimate outcome if, by “good” reasons, we mean legitimate reasons. This, at any rate, is the most important question confronting the field of constitutional interpretation.
See also Judicial Review.
Bibliography
- Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
- Charles Black, Structure and Relationship in Constitutional Law (1969).
- Philip Bobbitt, Constitutional Fate (1982).
- Paul Brest, Sanford Levinson, J. M. Balkin, and Akhil Reed Amar, Processes of Constitutional Decision‐Making, 4th ed. (2000).
- John Hart Ely, Democracy and Distrust (1980).
- Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (1988).
- Learned Hand, The Bill of Rights (1958).
- Sanford Levinson, Constitutional Faith (1988).
- Walter F. Murphy, Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter, Review of Politics 48 (1986): 401–423.
- Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999)
— Philip Bobbitt
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