Exploring the Constitution
Theories of Constitutional Interpretation
What are appropriate sources of authority to guide interpretation of the Constitution and what relative weight should be assigned to the various appropriate sources?
There are five basic sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law. There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God's law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called "originalists." Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called "non-originalists." In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain "fundamental rights" that are not explicitly protected in the text of the Constitution.
Originalist: An originalist is a person who believes that the meaning of the constitution does not change or evolve over time, but rather that the meaning of the text is both fixed and knowable. An originalist believes that the fixed meaning of the text should be the sole guide for a judge when applying or interpreting a constitutional provision.
Textualist: A textualist is an originalist who gives primary weight to the text and structure of the Constitution. The text means what it would have been understood to mean by an ordinary person at the time it was written. Textualists often are skeptical of the ability of judges to determine collective "intent." Justice Antonin Scalia is a textualist.
Intentionalist: An intentionalist is an originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers. Judge Robert Bork is an intentionalist.
Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision "wrong" on originalist terms because it promotes stability or in some other way promotes the public good. Federal Judge Richard Posner is a legal pragmatist.
Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.
Eight Reasons to be an Originalist
1. Originalism reduces the likelihood
that unelected judges will seize the reigns of power from elected
2. Originalism in the long run better preserves the authority of the Court.
3. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria.
4. Lochner vs. New York (widely considered to be a bad non-originalist decision).
5. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.
6. Originalism better respects the notion of the Constitution as a binding contract.
7. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?]
8. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.
Some Originalist Judges
Justice Hugo Black
Justice Antonin Scalia
Justice Clarence Thomas
Judge Robert Bork
An Originalist Opinion: Marsh vs Chambers
Robert Bork Making the Case for Originalism:
If the Constitution is law, then
presumably its meaning, like that of all other law, is the meaning the lawmakers
were understood to have intended. If the Constitution is law, then
presumably, like all other law, the meaning the lawmakers intended is as binding
upon judges as it is upon legislatures and executives. There is no other
sense in which the Constitution can be what article VI proclaims it to be:
"Law...." This means, of course, that a judge, no matter on what court he sits,
may never create new constitutional rights or destroy old ones. Any time
he does so, he violates not only the limits to his own authority but, and for
that reason, also violates the rights of the legislature and the people....the
philosophy of original understanding is thus a necessary inference from the
structure of government apparent on the face of the Constitution.
Supreme Court Justice Antonin Scalia is one of the leading proponents of originalism as a theory of constitutional interpretation. Justice Scalia calls originalism "the lesser evil" in a famous and oft cited law review article. For an extended excerpt from Justice Scalia's "Originalism, the lesser evil," click here.
Eight Reasons against being an Originalist
1. The framers at the Convention
in Philadelphia indicated that they did not want their specific intentions to
2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.
3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It's better than flipping a coin.
4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)
5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities.
6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
7. Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that.
8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.
Justice Harry Blackmun
Justice William Brennan
Justice William O. Douglas
Judge Richard Posner
A Non-Originalist Opinion: Griswold vs. Connecticut
Judge Richard Posner on the Importance of Judicial Gap-Filling:
A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning the use or distribution of contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home....We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution.
For an extended excerpt from Judge Posner's writings on constitutional interpretation, click here.