Theories of Constitutional Interpretation

Theories of Constitutional Interpretation
Professor Mark J. Richards
Constitutional Law I

I. Four elements of legal reasoning

A. Facts

B. Law

C. Policy implications

D. Normative and political implications

II. Why do legal actors engage in legal reasoning?

Lawyers

Juries

Judges

III. Early American approaches to legal reasoning

A. What was Joseph Story’s perspective?

B. What is the plain meaning rule?

C. Explain the theory of legal positivism

D. Legal realism

What factors did judges take into account according to Oliver Wendell Holmes?

Explain the significance of acknowledging that “judges make law.”

What was a Brandeis Brief and how did it signify an empirical approach to legal reasoning?

Which members of the US Supreme Court were associated with legal realism?

What did Justice Frankfurter write in a letter to Justice Black about judges making the law?

IV. Stare decisis

A. Definition: We let the prior decision stand. The principle is to follow precedent.

B. Vertical. No lower court should ignore a decision of a higher court which controls it. In the federal system, the U.S. Supreme Court controls all of the Courts of Appeals and District Courts. Each Court of Appeals controls all of the District Courts in its circuit.

C. Horizontal. Courts at the same level. Should the Supreme Court apply its own precedents?

D. Justification of Stare Decisis. Why is it important?

E. What are the advantages and disadvantages of flexibility in the law?

V. Dimensions of Constitutional Interpretation

A. Textualism v. more expansive readings of text

Interpretivism v. noninterpretivism: "Broadly speaking, interpretivists hold that constitutional interpretation should be limited solely to the text and historical context of particular provisions of the Constitution and the Bill of Rights. By contrast, noninterpretivists maintain that constitutional interpretation frequently requires going beyond the text and historical context of specific provisions to articulate and apply broader principles of constitutional politics." - (O'Brien 2008, 73)

1. textualist approaches

strict constructionism

literalism

2. more expansive readings of the text

Ronald Dworkin's moral reading: Lawyers, judges & citizens interpret abstract, principled clauses in the Constitution with the understanding that they invoke moral principles about political decency and justice. This brings political morality to the heart of constitutional law.

Justice William Brennan : "The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs" (O'Brien 2008, 78).

B. Activism v. restraint

C. Liberalism and conservativism

D. Originalism and framers' intent

1. Originalism: Justice Antonin Scalia sees it as a form of textualism that applies specifically to constitutional interpretation. The starting point for interpretation should be the constitutional text, but he will refer to the writings of the founding fathers, or framers of particular amendments. Their writings "display how the text of the Constitution was originally understood" (Scalia 1997, A Matter of Interpretation, 38). (However, Scalia does not consider framers' intent when looking at legislation rather than the Constitution.)

2. Justification of originalism:

a. Concerned that common law (judge-made law) is incompatible with democracy. Constitution and amendments were approved by the people. If justices limit themselves to original understanding of Constitution, judicial review is justified (and limited).

b. Avoids problems of seeking current meaning. This is a common law or Living Constitution approach, where Constitution morphs and evolves over time, according to needs of society and decisions of the Supreme Court. Avoids the justices imposing their political values.

E. Criticisms of originalism

1. Dworkin: We should not consider framers’ concrete applications of the principles, because constitutional amendments are written at a general level, allowing for adaptation over time

2. Brennan: Originalism feigns deference to the framers. "But in truth it is little more than arrogance cloaked as humility."

Who are the framers? Did the framers agree? Can we discern their intent?

We look to the history, and to historical interpretation, "but the ultimate question must be, what do the words of the text mean in our time" (O'Brien 2008, 78).

3. Lawrence Tribe: Many of Scalia's decisions cannot be explained by originalism (for example, Fourteenth Amendment incorporation, First Amendment flag-burning and R.A.V. cases).

a. Scalia's response: Stare decisis is an exception to originalism. Purpose of originalism is not to roll back established rights, but to prevent new rights (e.g. right to physician-assisted suicide).

b. Tribe's response: Your choice of when to use stare decisis is not determined by originalism - it is your choice.

c. Scalia's response: I admit that my choice of when to apply stare decisis leaves me open to the charge that I use my own values to decide. "I have never claimed that originalism inoculates against willfulness, only that (unlike aspirationism) it does not cater to it" (140).