Introduction — Ways to Interpret the Constitution

Intro.8.1 Interpreting the Constitution Generally

Early in the history of the United States, the Supreme Court began to exercise the power that it is most closely and famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison,¹ the Supreme Court famously asserted and explained the foundations of its power to review the constitutionality of federal governmental action.² During the two decades following its holding in Marbury, the Court decided additional cases that helped to establish its power to review the constitutionality of state governmental action.³ If a challenged governmental action is unconstitutional, the Court may strike it down, rendering it invalid.⁴ When performing the function of judicial review,⁵ the Court must necessarily ascertain the meaning of a given provision within the Constitution, often for the first time, before applying its interpretation of the Constitution to the particular governmental action under review.

The need to determine the meaning of the Constitution through the use of methods of constitutional interpretation and, perhaps, construction,⁶ is apparent from the text of the document itself.⁷ While several parts of the Constitution do not lend themselves to much debate about their preferred interpretation,⁸ much of the Constitution is broadly worded, leaving ample room for the Court to interpret its provisions before it applies them to particular legal and factual circumstances.⁹ For example, the Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”¹⁰ The text of the Amendment alone does not squarely resolve whether the “right of the people to keep and bear [a]rms” extends to all citizens or merely is related to, or perhaps conditioned on, service in a militia. This ambiguity prompted a closely divided 2008 decision of the Supreme Court that ruled in favor of the former interpretation.¹¹

The text of the Constitution is also silent on many fundamental questions of constitutional law, including questions that its drafters and those ratifying the document could not have foreseen or chose not to address.¹² For example, the Fourth Amendment, ratified in 1791, does not on its face resolve whether the government may perform a search of the digital contents of a cellphone seized incident to arrest without obtaining a warrant.¹³ Thus, interpretation is necessary to determine the meaning of ambiguous provisions of the Constitution or to answer fundamental questions left unaddressed by the drafters. Some commentators have also noted the practical need for constitutional interpretation to provide principles, rules, or standards to govern future conduct of regulated parties, as well as political institutions, branches of government, and regulators.¹⁴

When deriving meaning from the text of the Constitution, the Court has relied on certain “methods” or “modes” of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution.¹⁵ There is significant debate over which sources and methods of construction the Court should consult when interpreting the Constitution—a controversy closely related to more general disputes about whether and how the Court should exercise the power of judicial review.

Judicial review at the Supreme Court, by its very nature, can involve unelected judges¹⁶ overturning the will of a democratically elected branch of the Federal Government or popularly elected state officials. Some scholars have argued that in striking down laws or actions, the Court has decided cases according to the Justices’ own political preferences.¹⁷ In response to these concerns, constitutional scholars have constructed theories designed to ensure that the Justices following them would be able to reach principled judgments in constitutional adjudication. In 1987, Professor Richard Fallon of the Harvard Law School divided “interpretivists,” or those purporting to prioritize the specific text and plain language of the Constitution above all else, into two basic camps: “On one side stand ‘originalists,’” whom he characterized as taking “the rigid view that only the original understanding of the language and the framers’ specific intent ought to count. On the other side, ‘moderate interpretivists’ allow contemporary understandings and the framers’ general or abstract intent to enter the constitutional calculus.”¹⁸ Whether or not Professor Fallon’s precise description at the time was accurate, those regarding themselves as originalists have clarified that the Court should rely on the fixed meaning of the Constitution as understood by at least the public at the time of the founding.¹⁹ This has become known as the original public meaning of the Constitution.

On the other hand, still other commentators have questioned the legitimacy of fixating on what the Framers, ratifiers, or members of their generation might have considered the core meaning of a particular provision of the Constitution, and have instead suggested interpretive methods that ensure the Court’s decisions allow government to function properly, protect minority rights, and safeguard the basic structure of government from majoritarian interference.²⁰ Although the debate over the proper sources of the Constitution’s meaning remains unresolved, several key methods of constitutional interpretation have guided the Justices in their decision making and, more broadly, have influenced constitutional dialogue.²¹

It is possible to categorize the various methods that have been employed when interpreting the Constitution.²² This essay broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods by the Court. The modes discussed in detail in this essay are: (1) textualism; (2) original meaning; (3) judicial precedent; (4) pragmatism; (5) moral reasoning; (6) national identity (or “ethos”); (7) structuralism; and (8) historical practices.

In explaining these modes, this essay is merely describing the most common methods on which the Justices (and other interpreters) have relied to argue about the meaning of the Constitution.²³ Depending on the mode of interpretation, the Court may rely upon a variety of materials that include, among other things, the text of the Constitution; constitutional and ratification convention debates; prior Court decisions; pragmatic or moral considerations; and long-standing congressional or legislative practices.²⁴ It is important to note that the Court may use more than one source in deciding a particular case, and the Justices must exercise some discretion in choosing or coordinating the sources and materials they will consult in making sense of those sources.²⁵ A discussion of these modes of interpretation and the materials the Justices rely upon will aid the reader in understanding the motivating principles behind the Court’s decisions, as discussed in further detail in the Constitution Annotated.

Intro.8.2 Textualism and Constitutional Interpretation

Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear.¹ Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text.² They are concerned primarily with the plain, or popular, meaning of the text of the Constitution. Nor are textualists concerned with the practical consequences of a decision; rather, they are wary of the Court acting to refine or revise constitutional texts.³

The Justices frequently rely on the text in conjunction with other methods of constitutional interpretation.⁴ In fact, the Court will often look to the text first before consulting other potential sources of meaning to resolve ambiguities in the text or to answer fundamental questions of constitutional law not addressed in the text.⁵ For example, in Trop v. Dulles, a plurality of the Court held that the Eighth Amendment prohibited the government from revoking the citizenship of a U.S. citizen as a punishment.⁶ When determining that a punishment that did not involve physical mistreatment violated the Constitution, the Court first looked briefly to the text of the Amendment, noting that the “exact scope” of the phrase “cruel and unusual” punishment in the Eighth Amendment had not been “detailed by th[e] Court.”⁷ The plurality then turned to other modes of interpretation, such as moral reasoning and historical practice, in deciding the case.⁸

The Trop plurality’s use of textualism in combination with other interpretive methods is distinguishable from a stricter textualist approach espoused most famously by Justice Hugo Black.⁹ Consistent with his view that those interpreting the Constitution should look no further than the literal meaning of its words, Justice Black contended that the text of the First Amendment, which states, “Congress shall make no law . . . abridging the freedom of speech, or of the press” absolutely forbid Congress from enacting any law that would curtail these rights.¹⁰ An example of Justice Black’s use of textualism in a First Amendment case is his dissent in Dennis v. United States.¹¹ In that case, the Court held that Congress could, consistent with the First Amendment’s guarantee of freedom of speech, criminalize the conspiracy to advocate the forcible overthrow of the U.S. government.¹² The Court determined that the severity of potential harm to the government from the speech in question justified Congress’s restrictions on First Amendment rights.¹³ In accordance with his views that the text of the Constitution should serve as the sole source of its meaning, Justice Black dissented on the grounds that the Court should not have applied a balancing test to uphold the law against First Amendment challenges.¹⁴ He wrote, “I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’s or our own notions of mere ‘reasonableness.’ Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress.”¹⁵

Another classic example of a self-consciously textualist opinion is Justice Black’s dissent in Griswold v. Connecticut.¹⁶ In Griswold, the majority struck down as unconstitutional a Connecticut law that criminalized the furnishing of birth control to married couples based on a view that the Due Process Clause of the Fourteenth Amendment provides a general right to privacy.¹⁷ Justice Black criticized the majority for straying too far from the text of the Bill of Rights and relying on “nebulous” natural law principles to find a right to privacy in “marital relations” in the Constitution that—at least in his view—did not exist.¹⁸ Adhering to his preference for interpreting the Constitution in line with its text, Justice Black wrote, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”¹⁹

Proponents of textualism point to the simplicity and transparency of an approach that focuses solely on the objectively understood meaning of language independent of ideology and politics.²⁰ They argue that textualism prevents judges from deciding cases in accordance with their personal policy views, leading to more predictability in judgments.²¹ Proponents also argue that textualism promotes democratic values because it adheres to the words of the Constitution adopted by the “people” as opposed to what individual Justices think or believe.²²

Opponents of a strict reliance solely on the text in interpreting the Constitution suggest that judges and other interpreters may ascribe different meanings to the Constitution’s text depending on their background²³—a problem compounded by textual provisions that are broadly worded²⁴ or fail to answer fundamental constitutional questions.²⁵ In addition, opponents argue that judges should consider values not specifically set forth in the text, such as those based on moral reasoning, practical consequences, structural relationships, or other considerations.²⁶ In other words, establishing textual meaning may not be straightforward, and a more flexible approach that does not bind the Court and policymakers to words written 300 years ago may, in the view of those who argue against texualism, be necessary to ensure preservation of fundamental constitutional rights or guarantees.²⁷

Intro.8.3 Original Meaning and Constitutional Interpretation

Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Though this method has generally been called “originalism,” constitutional scholars have not reached a consensus on what it means for a judge to adopt this methodology for construing the Constitution’s text.¹ Disagreements primarily concern which sources scholars should consult when determining the fixed meaning of the Constitution.² Originalists, however, generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other responsible interpreters) is to construct this original meaning.³

For many years, some prominent scholars (such as Robert Bork) argued that in interpreting the Constitution, one should look to the original intent of the people who drafted, proposed, adopted, or ratified the Constitution to determine what those people wanted to convey through the text.⁴ According to this view, original intent may be found in sources outside of the text, such as debates in the Constitutional Convention or the Federalist Papers.⁵ For example, in Myers v. United States,⁶ Chief Justice William Howard Taft, writing for the majority, held that the President did not need legislative approval to remove an Executive Branch official who was performing a purely executive function.⁷ The Court sought the original meaning of the President’s removal power by looking at English common law, the records of the Constitutional Convention, and the actions of the first Congress, among other sources.⁸ Relying on these various sources, in his opinion for the Court, Chief Justice Taft wrote that “[t]he debates in the Constitutional Convention indicated an intention to create a strong [E]xecutive.”⁹ Notably, the Myers Court did not look at sources that would likely indicate what ordinary citizens living at the time of the Founding thought about the President’s removal power.

Over the course of Justice Antonin Scalia’s near thirty-year tenure on the Supreme Court, he and several prominent scholars explained that, as originalists, they were committed to seeking to understand original public meaning of the Constitution.¹⁰ This method considers the plain meaning of the Constitution’s text as it would have been understood by the general public, or a reasonable person, who lived at the time the Constitution was ratified.¹¹ This approach has much in common with textualism but is not identical. The original public meaning approach to understanding the Constitution is not based solely on the text, but, rather, draws upon the original public meaning of the text as a broader guide to interpretation. Justice Scalia’s majority opinion in District of Columbia v. Heller¹² illustrates the use of original public meaning in constitutional interpretation. In that case, the Court held that the Second Amendment, as originally understood by ordinary citizens, protected an individual’s right to possess firearms for private use unconnected with service in a militia.¹³ Justice Scalia’s opinion examined various historical sources to determine original public meaning, including dictionaries in existence at the time of the Founding and comparable provisions in state constitutions.¹⁴

Those in favor of the use of original meaning as an interpretive approach point to its long historical pedigree¹⁵ and its adherence to the democratic will of the people who originally framed and ratified the Constitution.¹⁶ They point as well to the basic logic that a law, in order to function as law, has to have a fixed or settled meaning until it is formally amended or discarded.¹⁷ Proponents of originalism also argue that the approach limits judicial discretion, preventing judges from deciding cases in accordance with their own political views.¹⁸ Some originalists argue that changes to the Constitution’s meaning should be left to further action by Congress and the states to amend the Constitution in accordance with Article V.¹⁹ Proponents also credit the approach with ensuring more certainty and predictability in judgments.²⁰

Those who are skeptical of this mode of interpretation underscore the difficulty in establishing original meaning. Scholars cannot always agree on original meaning, and, perhaps, people living at the time of the Constitution’s adoption may not have agreed on a particular meaning either.²¹ As such, critics argue, originalists will have merely constructed a meaning that had never actually been approved by the people who drafted or ratified the actual text being construed.²² Such a view may stem from the potentially wide variety of sources of such meaning; conflicting statements by these sources; conflicting understandings of statements in these sources; and gaps in historical sources.²³ Thus, because of this lack of consensus on the original meaning of the Constitution, judges may simply choose the original view that supports their political beliefs.²⁴ Opponents also argue that originalism requires judges to act as historians—a role for which they may not be well suited—as opposed to as decision makers.²⁵

While Justice Elena Kagan, for example, has conceded that “we [the Justices] are all originalists,”²⁶ many critics question the extent to which originalism is a workable theory of constitutional interpretation. They argue that originalism is an inflexible, flawed method of constitutional interpretation,²⁷ contending that the Constitution’s contemporaries could not have conceived of some of the situations that would arise in modern times.²⁸ They argue further that interpreting the Constitution based on original meaning may thus fail to protect minority rights because women and minorities did not have the same rights at the time of the Founding (or ratification of the Civil War Amendments) as they do today.²⁹ In addition, some skeptics of originalism challenge the view that Article V should be the exclusive vehicle for constitutional change,³⁰ as that article requires a two-thirds majority vote of the House of Representatives and Senate to propose an amendment,³¹ and ratification by three-fourths of the states for the amendment to become part of the Constitution.³² The high threshold the Constitution creates for formal amendment has prompted arguments that the Constitution’s meaning should not be fixed in time, but, rather, should accommodate modern needs.³³

Intro.8.4 Judicial Precedent and Constitutional Interpretation

The most commonly cited source of constitutional meaning is the Supreme Court’s prior decisions on questions of constitutional law.¹ For most, if not all Justices, judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.² Although the Court routinely purports to rely upon precedent,³ it is difficult to say with much precision how often precedent has actually constrained the Court’s decisions⁴ because the Justices plainly have latitude in how broadly or narrowly they chose to construe their prior decisions.⁵

In some cases, however, a single precedent may play a particularly prominent role in the Court’s decision making. An example of the heightened role that precedent can play in constitutional interpretation is the Court’s decision in Dickerson v. United States,⁶ which addressed the constitutionality of a federal statute governing the admissibility of statements made during police interrogation, a law that functionally would have overruled the 1966 case of Miranda v. Arizona. In striking down the statute, the majority declined to overrule Miranda, noting that the 1966 case had “become embedded in routine police practice to the point where the warnings have become part of our national culture.”⁷

More often, the Court reasons from the logic of several precedents in rendering its decisions. An example is Arizona State Legislature v. Arizona Independent Redistricting Commission, which held that the voters of Arizona could remove from the state legislature the authority to redraw the boundaries for legislative districts and vest that authority in an independent commission.⁸ In so holding, the Court examined the Elections Clause, which states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”⁹ The Court determined that the term “Legislature” encompassed the voters of a state making law through a referendum.¹⁰ In reaching this determination, the Court relied on three cases from the early twentieth century to support a more expansive view of the term “Legislature,”¹¹ including one case from 1916, Ohio ex rel. Davis v. Hildebrant, which the Court described as holding that a state referendum was “part of the legislative power” and could be “exercised by the people to disapprove the legislation creating congressional districts.”¹²

Proponents of the primacy of precedent as a source of constitutional meaning point to the legitimacy of decisions that adhere to principles set forth in prior, well-reasoned written opinions.¹³ They contend that following the principle of stare decisis¹⁴ and rendering decisions grounded in earlier cases supports the Court’s role as a neutral, impartial, and consistent decision maker.¹⁵ Reliance on precedent in constitutional interpretation is said to provide more predictability, consistency, and stability in the law for judges, legislators, lawyers, and political branches and institutions that rely on the Court’s rulings;¹⁶ prevent the Court from overruling all but the most misguided decisions;¹⁷ and allow constitutional norms to evolve slowly over time.¹⁸

Some argue that judicial overreliance on precedent can be problematic. For one thing, certain precedents might have been wrongly decided, in which a case relying on them merely perpetuates their erroneous construction of the Constitution.¹⁹ Indeed, critics argue that, if the Court strictly adheres to precedent, once a precedent has been established on a question of constitutional law, the only way to alter that ruling is to amend the Constitution.²⁰ This inflexibility is particularly problematic when those outside the Court begin to disagree about general background principles underlying a precedent; as such, disagreements arguably cause that precedent to lose its authority.²¹ For example, when precedent offends basic moral principles (e.g., Plessy v. Ferguson²²), the power of the Court’s precedent may necessarily be weakened.²³ Other commentators argue that “consistency,” “predictability,” “stability,” and “neutrality” are not actually benefits of reliance on precedent, as judges may choose among precedents and, to some extent, interpret precedents in accordance with their own views in order to overrule them implicitly; to expand them; or to narrow them.²⁴ In addition, some proponents of original meaning as a method of constitutional interpretation object to the use of judicial precedent that conflicts with original meaning, because it favors the views of the Court over the views of those who ratified the Constitution, thereby allowing mistaken interpretations of the Constitution to persist.²⁵

Intro.8.5 Pragmatism and Constitutional Interpretation

In contrast to textualist and some originalist approaches to constitutional interpretation, which generally focus on the words of the Constitution as understood by a certain group of people, pragmatist approaches consider the likely practical consequences of particular interpretations of the Constitution.¹ That is, pragmatist approaches often involve the Court weighing or balancing the probable practical consequences of one interpretation of the Constitution against other interpretations.² One flavor of pragmatism weighs the future costs and benefits of an interpretation to society or the political branches,³ selecting the interpretation that may lead to the perceived best outcome.⁴ For example, in United States v. Leon, the majority held that the Fourth Amendment does not necessarily require a court to exclude evidence obtained as a result of the law enforcement’s good faith reliance on an improperly issued search warrant.⁵ Justice Byron White’s majority opinion in Leon took a pragmatic approach, determining that “the [exclusionary] rule’s purposes will only rarely be served” by applying it in the context of a good faith violation of the Fourth Amendment.⁶ Notably, the Court determined that adoption of a broader exclusionary rule would result in significant societal costs by undermining the ability of the criminal justice system to obtain convictions of guilty defendants.⁷ Such costs, the Court held, outweighed the “marginal or nonexistent benefits.”⁸

Another case in which the Court accorded weight to the likely practical consequences of a particular interpretation of the Constitution is United States v. Comstock.⁹ In Comstock, the Supreme Court considered whether Congress had the power under Article I, Section 8 of the Constitution to enact a civil commitment law authorizing the Department of Justice to cause to be detained indefinitely convicted sex offenders who had already served their criminal sentences but were deemed “mentally ill” and “sexually dangerous.”¹⁰ Such a power is not among those specifically enumerated in Article I, Section 8 of the Constitution, but the Court held that Congress could enact the law under a combination of: (1) its implied constitutional powers to, among other things, legislate criminal offenses, provide for the imprisonment of offenders, and regulate prisons and prisoners; and (2) Article I, Section 8, Clause 18 of the Constitution, which provides Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States.”¹¹ Justice Stephen Breyer, writing for the Court, listed several factors that weighed in favor of the Court’s determination that Congress possessed the authority to enact the civil commitment law.¹² One of these factors rested primarily on pragmatic concerns about the potential detriment to society of releasing dangerous offenders into the community.¹³ The Court held that the civil commitment law represented a rational means of implementing Congress’s implied criminal justice powers “in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody.”¹⁴

Using another type of pragmatist approach, a court might consider the extent to which the judiciary could play a constructive role in deciding a question of constitutional law.¹⁵ According to this approach, a judge might observe the “passive virtues” by declining to rule on the constitutional issues in a case by adhering to certain doctrines, including those under which a judge will avoid ruling on political or constitutional questions.¹⁶ This may allow the Court to avoid becoming frequently embroiled in public controversies, preserving the Court’s institutional capital for key cases, and giving more space for the democratic branches to address the issue and reach accommodations on questions about the meaning of the Constitution.¹⁷ The Supreme Court’s decision in Baker v. Carr¹⁸ illustrates the application of this second type of pragmatism. In that case, Justice William Brennan, writing for the majority, debated a dissenting Justice Felix Frankfurter about whether the Court was the proper actor to review the constitutionality of a state’s apportionment of voters among legislative districts, or whether the plaintiffs should have sought remedies from the state legislature.¹⁹ Justice Brennan’s majority opinion in Baker ultimately concluded that a state’s apportionment decisions are properly justiciable matters, as an alternative holding would require those harmed by malapportionment to seek redress from a political process that was skewed against such plaintiffs.²⁰

Those who support pragmatism in constitutional interpretation argue that such an approach takes into account the “political and economic circumstances” surrounding the legal issue before the Court and seeks to produce the optimal outcome.²¹ Such an approach may allow the Court to issue decisions reflecting contemporary values to the extent that the court considers these values relevant to the costs and benefits of a particular interpretation.²² On this view, pragmatism posits a view of the Constitution that is adaptable to changing societal circumstances, or that at least reflects the proper role of the judiciary.²³

Critics of pragmatism argue that consideration of costs and benefits unnecessarily injects politics into judicial decision making.²⁴ They argue that judges are not politicians. Rather, a judge’s role is to say what the law is and not what it should be.²⁵ In addition, some opponents of the pragmatic approach have argued that when the Court observes the “passive virtues” by dismissing a case on jurisdictional grounds, it fails to provide guidance to parties for the future and to fulfill the Court’s duty to decide important questions about constitutional rights.²⁶

Intro.8.6 Moral Reasoning and Constitutional Interpretation

Another approach to constitutional interpretation is based on moral or ethical reasoning—often broadly called the “ethos of the law.”¹ Under this approach, some constitutional text employs or makes reference to terms that are infused with (and informed by) certain moral concepts or ideals, such as “equal protection” or “due process of law.”² The moral or ethical arguments based on the text often pertain to the limits of government authority over the individual (i.e., individual rights).³ The Court has derived general moral principles from the broad language of the Fourteenth Amendment in cases involving state laws or actions affecting individual rights.⁴ For example, in Lawrence v. Texas, the Court struck down a Texas law that banned private, consensual same-sex sexual activity, as violating the Due Process Clause of the Fourteenth Amendment.⁵ That clause provides, in relevant part, that states shall not “deprive any person of . . . liberty . . . without due process of law.”⁶ The Court held that the concept of liberty “presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”⁷ Notably, the text of the Fourteenth Amendment does not define “liberty,” and the Court’s holding in Lawrence is more broadly grounded in general views about the proper role of government in not punishing behavior that provides no discernible harm to the public at large.⁸

A particularly famous example of an argument based on the “ethos of the law” is contained in the Court’s decision in Bolling v. Sharpe.⁹ The Court decided Bolling on the same day it decided Brown v. Board of Education, which held that a state, in segregating its public school systems by race, violated the Fourteenth Amendment.¹⁰ Specifically, the Court held that the practice of “separate but equal” as applied to schools violated the Equal Protection Clause, a provision that prohibits state governments from depriving their citizens of the equal protection of the law.¹¹ Bolling, however, involved the District of Columbia school system, which was not subject to the Fourteenth Amendment because the District of Columbia is not a state, but rather a federal enclave.¹² Furthermore, the Fifth Amendment, which applies to the actions of the federal government, provides that no person shall “be deprived of life, liberty, or property, without due process of law” but does not explicitly contain an Equal Protection Clause.¹³ Nevertheless, the Court struck down racial segregation in D.C. public schools as a violation of the Fifth Amendment’s Due Process Clause, determining that due process guarantees implicitly include a guarantee of equal protection.¹⁴ The Court’s reasoning was based on the Due Process Clause being derived “from our American ideal of fairness,” ultimately holding that the Fifth Amendment prohibited the Federal Government from allowing segregation in public schools.¹⁵

Proponents of using moral or ethical reasoning as an approach for making sense of broad constitutional text, such as the Due Process Clause of the Fourteenth Amendment, argue that general moral principles underlie much of the text of the Constitution.¹⁶ Thus, arguments about what the Constitution means based on moral reasoning produce “more candid opinions,” as judges often rely upon moral arguments but disguise them as textual arguments or arguments based on precedent.¹⁷ Some also argue that the Framers designed the Constitution as an instrument that would grow over time.¹⁸ Thus, supporters of moral reasoning in constitutional interpretation contend that its use appropriately leads to more flexibility for judges to incorporate contemporary values when deriving meaning from the Constitution.¹⁹ Ethical arguments can also fill in gaps in the text to address situations unforeseen at the time of the founding,²⁰ consistent with the understanding of the Bill of Rights as a starting point for individual rights.²¹

Critics of using moral reasoning in constitutional interpretation have argued that courts should not be “moral arbiters.”²² They argue that ethical arguments are based on principles that are not objectively verifiable²³ and may require a judge to choose between “competing moral conventions.”²⁴ Courts may thus be ill-equipped to discern established moral principles. Judges using this mode of constitutional interpretation may therefore decide cases according to their own policy views, and opponents believe that overturning acts of the political branches based on such considerations is undemocratic.²⁵ Some opponents argue that moral considerations may be better left to the political branches.²⁶

Intro.8.7 National Identity or Ethos and Constitutional Interpretation

Another approach to interpretation that is closely related to but conceptually distinct from moral reasoning is judicial reasoning that relies on the concept of a “national ethos.” This national ethos is defined as the unique character of American institutions, our distinct national identity, and “the role within [our public institutions] of the American people.”¹ An example of the “national ethos” approach to ethical reasoning is found in Moore v. City of East Cleveland, in which the Court struck down as unconstitutional a city zoning ordinance that prohibited a woman from living in a dwelling with her grandson.² In its decision, the Court surveyed the history of the family as an institution in American life and stated: “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.”³ Thus, the Court struck down the zoning ordinance, at least in part, because it interfered with the American institution of the family by preventing a grandmother from living with her grandson.⁴

Another example of the Court’s reliance on national ethos as a rationale is West Virginia State Board of Education v. Barnette.⁵ In that case, the Court held that the First Amendment prohibited a state from enacting a law compelling students to salute the American flag.⁶ Writing for the majority, Justice Robert Jackson noted that, in contrast to authoritarian regimes such as the Roman Empire, Spain, and Russia, the United States’ unique form of constitutional government eschews the use of government coercion as a means of achieving national unity.⁷ The Court invoked the Nation’s character as reflected in the Constitution, writing that, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”⁸

Many of the arguments in the debate over reliance on the “national ethos” in constitutional interpretation share similarities with arguments made about the use of moral reasoning as a mode of interpretation. Some proponents of using the distinct character of the American national identity and the Nation’s institutions as a method for elaborating on the Constitution’s meaning argue that the “national ethos” underlies the text of the Constitution, and that the use of this method allows more flexibility for judges to incorporate contemporary American values when deriving meaning from the Constitution.⁹ Moreover, unlike approaches that discern meaning from general moral or ethical principles, the “national ethos” approach arguably has added legitimacy as a mode of interpretation because it is specifically tied to the identity and values of the United States and those aspects of the Constitution that are distinctly American.¹⁰ As noted, ethical arguments can also fill in gaps in the text to address situations unforeseen at the time of the founding.¹¹

On the other hand, as with moral reasoning, critics of an approach to constitutional interpretation based on the “national ethos” have argued that such an approach involves unelected judges determining the meaning of the Constitution based on principles that are not objectively verifiable—determinations that critics argue should be made by the political branches.¹²

Intro.8.8 Structuralism and Constitutional Interpretation

One of the most common modes of constitutional interpretation is based on the structure of the Constitution. Indeed, drawing inferences from the design of the Constitution gives rise to some of the most important relationships that everyone agrees the Constitution establishes—the relationships among the three branches of the Federal Government (commonly called separation of powers or checks and balances); the relationship between the federal and state governments (known as federalism); and the relationship between the government and the people.¹ Two basic approaches seek to make sense of these relationships.

The first, known as formalism, posits that the Constitution sets forth all the ways in which federal power may be shared, allocated, or distributed.² An example of the use of this form of structuralism as a mode of interpretation is found in Immigration and Naturalization Service v. Chadha.³ In that case, the Court held that one House of Congress could not by resolution unilaterally curtail the statutory authority of the Executive Branch to allow a deportable alien to remain in the United States.⁴ The Court examined the structure of the Constitution and noted that under the Bicameralism and Presentment Clauses in Article I, Sections 1 and 7, laws with subject matter that is “legislative in character [or effect]” require passage by a majority in both Houses and presentment to the President for his signature or veto.⁵ Viewing the exercise of the one-House veto in Chadha to be of a legislative nature, the Court concluded that the structural relationships that the Constitution established between the Legislative and Executive Branches forbid the “one-House [legislative] veto.”⁶

An example of the Court’s use of formalist structural reasoning in the context of federalism is U.S. Term Limits, Inc. v. Thornton.⁷ In that case, the Court considered whether the State of Arkansas could prohibit the names of otherwise-qualified candidates for congressional office from appearing on the state’s general election ballot if the candidates had served three terms in the House of Representatives or two terms in the Senate.⁸ In striking down an amendment to the Arkansas State Constitution, the Court relied heavily on its view of the formal structural relationships that the Constitution established among the people of the United States, the states, and the federal government.⁹ In particular, the Court determined that the Founding Fathers established a single, national legislature representing “the people of the United States” rather than a “confederation of sovereign states.”¹⁰ Thus, allowing states to adopt a patchwork of distinct qualifications for congressional service would “erode the structure envisioned by the Framers.”¹¹ Notably, the Court in U.S. Term Limits adhered closely to its view of how the Constitution allocates power between the federal and state governments, and did not employ a balancing test to examine the degree to which the states’ power to set qualifications for congressional office would interfere with the federal government’s constitutional prerogatives.

A second form of structural reasoning, known as functionalism, treats the Constitution’s text as having firmly spelled out the relationship among the three federal branches only at their apexes, but otherwise left it to be worked out in practice how power may be distributed or shared below the apexes.¹² Whereas formalism purports to hew closely to original meaning and regards historical practices as basically irrelevant or illegitimate, functionalism uses a balancing approach that weighs competing governmental interests as one of its principal methodologies.¹³ One early example of functionalism is McCulloch v. Maryland.¹⁴ In that case, the Court held that Congress had the power to create the Second Bank of the United States.¹⁵ While Congress’s enumerated powers in Article I, Section 8 of the Constitution do not specifically include the power to create a central bank, the Court considered whether Congress had such authority under its enumerated powers when viewed in conjunction with Article I, Section 8, Clause 18, which provides Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.”¹⁶ The Court determined that Congress had an implied power to create the bank under the Necessary and Proper Clause in order to implement its express powers to tax and spend, concluding that the terms “necessary” and “proper” should not have a restrictive meaning on Congress’s power.¹⁷ In so holding, the Court examined the structure of the Constitution’s text, noting that the Constitution located the Necessary and Proper Clause in the section of the Constitution that grants powers to Congress (Article I, Section 8), instead of the section of the Constitution that restricts the powers of the Federal Government (Article I, Section 9).¹⁸ Moreover, the McCulloch Court noted that a more restrictive reading of Congress’s powers would impair its ability to “perform[ ] its functions,” as a narrow reading of the Necessary and Proper Clause would impose “some difficulty in sustaining the authority of [C]ongress to pass other laws for the accomplishment of the same objects.”¹⁹

As is evident, a threshold debate among structuralists is whether to use a formalist or functionalist approach when interpreting the Constitution. This debate is founded partly in concerns about which approach demonstrates greater fidelity to the Constitution, which is closest to the original meaning of the Constitution, and which best protects liberty in cases raising questions about the proper allocation of power between the branches of the Federal Government; Federal Government and states; government institutions; or citizens and government.²⁰

Formalism focuses on the structural divisions in the Constitution with the idea that close adherence to these rules is required in order to achieve the preservation of liberty.²¹ An example is the Court’s opinion in Chadha, which, as noted, held that structural relationships that the Constitution established between the Legislative and Executive Branches forbid the “one-House [legislative] veto.”²² The Court rested its holding in part on a close adherence to the structural divisions established in the Constitution, stating: “It emerges clearly that the prescription for legislative action in [Article I, Sections 1 and 7 of the Constitution] represents the Framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”²³ As demonstrated in Chadha, a formalist approach to separation-of-powers questions rejects not only looking to post-ratification historical practices as a guide for determining constitutional meaning, but also eschews balancing tests that weigh the degree of interference with one branch’s powers.

By contrast, functionalism takes a more flexible approach, emphasizing the core functions of each of the branches, and asking whether an overlap in these functions upsets the equilibrium that the Framers sought to maintain.²⁴ An example is the Court’s opinion in Zivotofsky v. Kerry.²⁵ In that case, the Court held that the President has the exclusive power to recognize formally a foreign sovereign and its territorial boundaries, and that Congress could not effectively require the State Department to issue a formal statement contradicting the President’s policy on recognition.²⁶ In so holding, the Court stated that the President should have such an exclusive power because the Nation must have a “single policy” on which governments are legitimate, and that additional pronouncements from Congress on the issue could result in confusion.²⁷ The Court thus adopted a functionalist approach by considering the practical consequences of allocating the power of recognition between the Legislative and Executive Branches, ultimately concluding that the President alone should exercise that power.

A further illustration of the distinction between formalism and functionalism in a separation of powers case is Morrison v. Olson.²⁸ In Morrison v. Olson, the Court upheld against constitutional challenge provisions in the Ethics in Government Act of 1978 that allowed for appointment of an “independent counsel to investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws.”²⁹ The Attorney General could remove the independent counsel only for “good cause,”³⁰ a legal standard that provided the special prosecutor with significant independence from the President and his officers.³¹ In a 7-1 decision, the Court employed a functionalist approach and held that the Act did not violate constitutional separation-of-powers principles by sufficiently interfering with the President’s executive authority under Article II.³² The Court determined the limited nature of the special prosecutor’s jurisdiction and authority meant that the position did not “interfere impermissibly with [the President’s] constitutional obligation to ensure the faithful execution of the laws.”³³ Justice Scalia, the sole dissenter, adopted a formalist approach, arguing that the majority failed to adhere to the strict allocations of power that the Constitution establishes among the branches of government.³⁴ Justice Scalia wrote that the independent counsel provisions deprived the President of “exclusive control” over the exercise of “purely executive powers” (e.g., investigation and prosecution of crimes) by vesting them in the independent counsel, who was not removable at will by the President.³⁵

Proponents of structuralism note that it is a method of interpretation that considers the entire text of the Constitution rather than a particular part of it.³⁶ As a consequence, some proponents argue that structuralist methods produce clearer justifications for decisions that require interpretation of vague provisions of the Constitution and their application to particular factual circumstances than textualism alone.³⁷ Some argue that structuralism provides a firmer basis for personal rights than other modes of interpretation like textualism or moral reasoning.³⁸ For example, in Crandall v. Nevada, the Court struck down a state law imposing a tax on people leaving or passing through the state.³⁹ The Court inferred an individual right to travel among the states from the structural relationship the Constitution establishes between citizens and the federal and state governments.⁴⁰ While the Constitution does not specifically provide for a right to travel among the states, because citizens of the United States might need to travel among the states to exercise other constitutional rights, the Court inferred a right to travel from the Constitution viewed in its entirety.⁴¹ As a result, some structuralists argue that the method of interpretation provides a more firm basis to establish key constitutional rights, like the right to travel, than other modes of constitutional interpretation.⁴²

Some scholars maintain, however, that structuralism does not always lead to a clear answer.⁴³ More specifically, critics argue that it is more difficult for judges to apply and for citizens to understand interpretations based on structuralism than arguments based on other modes of interpretation.⁴⁴ In addition, many believe that determinations about the proper structure established by the Constitution are often subjective. While the eminent Professor Charles Black argued that structure was the most important mode of constitutional interpretation, at least one other prominent commentator has argued that the approach provides “no firm basis for personal rights” because personal rights are considered to derive from the “structure of citizenship” and are therefore “vulnerable to the [government’s] desire for power and its ability to manipulate the relation between citizen and state.”⁴⁵

Intro.8.9 Historical Practices and Constitutional Interpretation

Judicial precedents are not the only type of precedents that are arguably relevant to constitutional interpretation. Prior decisions of the political branches, particularly their long-established, historical practices, are an important source of constitutional meaning to many judges, academics, and lawyers.¹ Indeed, courts have viewed historical practice as a source of the Constitution’s meaning in cases involving questions about the separation of powers, federalism, and individual rights, particularly when the text provides no clear answer.²

A recent example of judicial reliance on historical practice—sometimes described as tradition—in constitutional interpretation is the Court’s decision in National Labor Relations Board v. Canning.³ When determining, among other things, that the President lacked authority to make a recess appointment during a Senate recess of fewer than ten days, the Court cited long-settled historical practice showing an absence of a settled tradition of such recess appointments as being relevant to the resolution of a separation-of-powers question not squarely addressed by the Constitution.⁴ Another example of the influence of historical practice on constitutional interpretation is the Court’s decision in Zivotofsky v. Kerry.⁵ As noted, in that case, the Court held that the President had the exclusive power to recognize formally a foreign sovereign and its territorial boundaries, and that Congress could not effectively require the State Department to issue a formal statement contradicting the President’s policy on recognition.⁶ In deciding the case, the Court relied in part on the long-standing historical practice of the President in recognizing foreign sovereigns without congressional consent.⁷

An example of the use of historical practice as a method of constitutional interpretation in a case involving the limits of government power is Marsh v. Chambers.⁸ In Marsh, the Court considered whether the First Amendment’s Establishment Clause, which prohibits laws “respecting an establishment of religion,” forbade the State of Nebraska from paying a chaplain with public funds to open each legislative session with a prayer in the Judeo-Christian tradition.⁹ The Court held that the state’s chaplaincy practice did not violate the Establishment Clause, attaching significance to the long-standing practices of Congress (including the Congress that adopted the First Amendment as part of the Bill of Rights) and some states in funding chaplains to open legislative sessions with a prayer.¹⁰ The Court wrote: “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”¹¹

The debate over historical practice as a mode of interpretation echoes many of the elements of debates over original meaning, judicial precedent, and arguments based on a “national ethos.”¹² Functionalists, for example, attach considerable importance to historical practices as a source of constitutional meaning, while formalists generally regard them as irrelevant.¹³ Those employing this method often argue that, when the text of the Constitution is ambiguous, the use of historical practice has legitimacy as an interpretive tool.¹⁴ They also contend that such an approach provides an objective and neutral basis for decision making, leading to more predictability and stability in the law upon which parties can rely.¹⁵ Moreover, according interpretive significance to historical practices in cases concerning the allocation of power among the branches of government may help to preserve settled expectations that have resulted from long-standing compromises among the branches regarding such allocations.¹⁶

Those opposing reliance on historical practices as a source of constitutional meaning argue that it may be difficult to establish definitively what the relevant historical practices are in order to interpret the Constitution properly.¹⁷ They suggest that not all practices are authorized by the written text and that historical sources may differ and thus might not be helpful in illuminating patterns in historical practices.¹⁸ They also warn that this methodology could allow judges to engage in a form of what is called “law office history”—simply choosing the sources that support the historical practices they wish to ratify or reject.¹⁹ Thus, it could be argued that historical practices may not lend themselves to easy or clear interpretation. Moreover, they can lead to results inconsistent with the original meaning of the Constitution.²⁰ Another possible problem with reliance on historical practices in constitutional interpretation, according to its critics, is that courts could end up legitimizing long-standing historical practices, such as slavery or segregation, that offend modern moral principles. Indeed, giving historical practices special place in constitutional interpretation could lead courts to fail to protect minority rights,²¹ or to preserve the basic structure of government established by the Constitution.²² At the same time, reliance on historical practices might undermine the political branches when they are attempting to be innovative or opt for novel solutions to old problems.²³

Deriving the Constitution’s meaning from long-established, historical practices of the political branches is one of several methods of constitutional interpretation the Court has relied upon when exercising the power of judicial review. In explaining the meaning of the provisions of the Constitution, the annotations that follow this essay often refer to these modes of interpretation when discussing how courts and others have construed particular provisions of the Constitution. An understanding of these methods, which are not mutually exclusive, will aid the reader in understanding the development of the constitutional doctrines that guide the Justices, government officials, and other individuals when they interpret the Constitution.