|Interpreting the Constitution: Seven Approaches
CONSTITUTIONAL DOCTRINE: This is a formulaic approach based on doctrines that sometimes are nothing more than a slogan and that are taken from a combination of the constitution’s text and previous cases. The best example of how interpretations arise from this approach is to be found in the evolution of the Equal Protection Clause of the Fourteenth Amendment (“One person, one vote!” and the prohibition against discrimination, a word that one does not find anywhere in the Constitution) and the Establishment Clause of the First Amendment (“The High Wall of Separation between Church and State”). Sometimes the reformulation is broad, as in these cases, but other times the approach can lead to a narrowing of interpretation, as in the case of the Fifth Amendment’s protections. Case law has evolved toward a prohibition only of “self-incrimination,” although the actual wording would appear to lend itself to a much broader understanding. This approach is potentially dangerous and, perhaps, lies at the core of Agresto’s argument because the only standard of interpretation is a justice’s opinion of what a given slogan encompasses – like a shoe into which any size foot may be squeezed.
LOGICAL REASONING: This method rests in the use of the logical syllogism, which is a formal argument that consists of a major premise, a minor premise, and a conclusion. As Rossum and Tarr illustrate, the major premise sets forth a proposition, such as “A law repugnant to the Constitution is void.” The minor premise contains an assertion related to the major premise: “This particular law is repugnant to the Constitution.” From these premises it must follow, that “This particular law is void” (8). This is the reasoning used by Chief Justice Marshall in Marbury v. Madison in 1803, which established Judicial Review as the Court’s prerogative. There are a couple of problems with the method, however. First of all, both the major and minor premises must indeed be true for the conclusion to e valid, and in the end such truthfulness rests greatly on a justice’s opinion. Secondly, logic alone cannot determine whether a given law is repugnant to the Constitution; that, too, is something that must be decided on the basis of informed judgment and opinion within the context of the Constitution’s purpose and whether or not a given law conforms to that purpose. Marshall, in McCulloch v. Maryland (1819), held that “Only its [the Constitution’s] great outlines should be marked, its important objects designated.” The minor elements that compose these great objects, Marshall believed, could be “deduced from the nature of the objects themselves.”
ORIGINAL UNDERSTANDING: This approach holds that constitutional interpretation must proceed from an understanding of what the Constitution’s authors intended for it to accomplish. Therefore, originalists rely heavily on documentary evidence, and especially on the notes of James Madison at the 1787 Federal Convention as well as The Federalist to “identify what ends the Framers intended the Constitution to achieve, what evils they sought to avoid, and what means they used to achieve these ends and avert these evils” (Rossum and Tarr, 14). Some critics of this method point out the difficulty of determining the Founders’ intent across the veil of time and changing language, while others ask, more fundamentally, why we should be bound by the Founders’ intentions at all. Justice Robert H. Jackson observed in Youngstown Sheet & Tube Company v. Sawyer (1952), “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called to interpret for Pharaoh” (14). But this exaggeration fails to consider fully that the men who crafted the instrument are and always will be the best guides to discovering “the ends and means of the constitutional order under which we live” (15). The originalist approach turns to the Founders’ testimony not for specific answers, but rather for general guidance: What were they trying to accomplish, and how can we reconcile the objectives of particular legislation with those objectives. If we return often and with diligence to The Federalist and to the words of the Constitution’s chief architect, then our efforts cannot help but enhance both our understanding of and appreciation for the instrument. Such a search is not for most originalists the be-all and end-all of interpreting the Constitution, but it is heavy evidence of, as Justice Story described it, the Constitution’s “nature and objects, its scope and design.”
PRECEDENT: The Latin phrase stare decisis means “to stand by decided matters” or to return to previously decided cases to resolve questions of interpretation. This is the primary method of reasoning in Anglo-American law. It brings to the legal system continuity, predictability, and stability. But reliance on precedent has been only haphazardly applied to constitutional law, and many jurists believe it is always better to return to the original doctrine than to rely on precedent. To understand why they might think this, one need only examine the Dred Scott decision. Thomas Hobbes said in his Dialogue between a Philosopher and a Student of the Common Laws of England that “Precedents prove only what was done, but not what was well done.”
RELIANCE ON FOREIGN LAWS AND COURTS: Recently, the Court has increasingly turned for guidance in interpreting the Constitution to foreign law and judicial practices. This is especially true where the Eighth Amendment’s prohibition of “cruel and unusual punishment” is concerned. Since Trop, the search for “evolving standards of decency” has gone beyond the American community to the views of foreign judges and legislators. In Thompson v. Oklahoma (1988), Justice John Paul Stevens held that the death penalty for juveniles under the age of 16 was impermissible because it was inconsistent with “the views of the international community.” Stevens relied on the same principle in the 2002 case of Atkins v. Virginia to find repugnant to the Constitution the execution of the mentally retarded. And, in Roper v. Simmons (2005), Justice Kennedy found that the Eighth Amendment prohibits the execution of anyone who committed their crime when they were younger than 18 by citing amici curiae briefs submitted by the Bar of England and Wales and the European Union and Members of the International Community. Progressive justices tend to have an internationalist outlook and to hold that many constitutional questions are of a larger, “human” nature that requires a global perspective. Conservative jurists, however, hold that the Constitution is a unique instrument for a unique America, and that, as Scalia held in Atkins, “the views and practices of the ‘world community’, whose notions of justice are (thankfully) not always those of our people.”
TEXTUAL ANALYSIS: This approach relies on explicating the constitutional text simply on the basis of its words. “If the language is clear, it is conclusive. There cannot be construction where there is nothing to construe” (Justice Noah Swayne, in U.S. v. Hartwell, 1868). On today’s court, Justice Antonin Scalia is most closely associated with the textual analysis approach (“Text and tradition”). “[W]hen judges test their individual notions of fairness against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges” (Schad v. Arizona).
THE LIVING CONSTITUTION: This approach treats the Constitution more as a political instrument than as a legal object. Based on changing conditions and what is learned by experience, the adaptive approach holds that present-day values and the sum of the unique “American experience” ought to shape constitutional interpretation. In other words, the Constitution becomes something of a chimera, meaning whatever society and, therefore, the Court, thinks it ought to mean. A good example is the changing interpretation of what is meant by “cruel and unusual punishment.” In Trop v. Dulles (1957) Chief Justice Earl Warren held that the weight of this prohibition changes over time to meet “the evolving standards of decency that mark the progress of a maturing society.” The problem with this approach is that it is all too easy to shift from not merely adapting concepts within the Constitution, but adapting the Constitution itself – “…not only new means to the ends of the Constitution but… new ends as well” (11). At that point, as justice Antonin Scalia has said, then people will “look for judges who agree with them as to what the evolving standards have evolved to; who agree with them as to what the Constitution ought to be” (A Matter of Interpretation, 46 – 47).
Rossum, Ross L., and G. Alan Tarr. American Constitutional Law Volume I: The Structure of
Government, 7th Ed. Belmont: Thomson Wadsworth, 2007.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton U. Press,