Is There One Best Method of Constitutional Interpretation?

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14 Responses

  1. Marty Lederman says:

    Dan: I’m afraid you must be hangin’ out with too narrow a set of “theorists,” if your impression is that they “strive to develop a consistent method of constitutional interpretation.” Sure, there are some that attempt a Grand Unified Theory of “method” — see, e.g., Amar, Barnett. But they’re really the outliers (not that there’s anything wrong with that!). Most academic theorists are quite reconciled to the notion of using a wide array of modes of constitutional interpretation — after all, as you note, the multiplicity has never given the Court itself (or even many Justices) a moment’s pause and, like it or not, that has and always will decribe how constitutional law develops *in fact.* The classic modern treatments are Philip Bobbitt’s “modalities” discussion in Constitutional Fate, and much of Richard Fallon’s work, including especially his “Constuctivist Coherence” article (late 1980’s) and his Harvard Foreword.

  2. Marty,

    I certainly agree that there is a sense that many might be “reconciled to” or accepting of the fact that a wide array of methods are used, but are there really a lot of theorists who would be originalist one day, textualist the next, purposive another day, broad and dynamic on a different occasion? Indeed Bobbitt discusses the various modalities and how none has won out over the others, and I did have his work in mind as I wrote this post. But I really wonder how many folks have truly attempted to develop a theory that is pluralistic toward interpretative approach. I don’t recall seeing Bobbitt explain a way to justify the use of a particular approach in a particular case — granted, it has been a while since I read Bobbitt’s book. But as I recall the book, he just said that there were six different methods and that there was no convincing way to justify one over the other. The part of the project that I’m interested in is how the Court as an institution or an individual theorist or jurist can apply multiple approaches in a coherent and justified way. Currently the Court applies many different methods, but not with any kind of coherence or larger vision for what it is doing. To bring theory closer to practice, the goal would be developing a coherent and justified theory for applying a plurality of approaches and for justifying why a particular method of interpretation is employed in each particular case that goes beyond the vagaries of which justice happens to be writing that opinion.

  3. Bruce says:

    At the risk of getting too “meta”, what would the theoretical justification for a variety of interpretive methods be? Or, put slightly differently, if adherence to a single method were jettisoned, what sort of evidence would one look to in Case N to argue that Method X was preferable to Method Y?

  4. Ah, Bruce, that’s the million dollar question, and the one I’m seeking an answer to. I think the answer would turn on historical considerations. Or it might turn on the fact that certain provisions of the Constitution are just more amenable to certain kinds of interpretation. So, for example, for a provision with a lot of materials demonstrating original intent and where times today are not so alien to the aims and concerns at the time the provision was ratified, perhaps it is wise to look to original intent — but not for a provision with a meager record of original intent or where things have changes so radically that discerning original intent would not be very relevant. One might argue that only in certain periods of the Court’s history can it adopt broader and bolder interpretations of the Constitution — too much of this will bring backlash and resentment — and therefore, the Court has to modulate when and how much to be bold and when to stick to more narrow kinds of interpretation. These considerations are, of course, quite messy, and are subject to considerable debate. But this debate would get beyond the rather ahistorical and acontextual discussions of finding the best method for all time.

  5. Simon says:

    Institutionally, why does the Court strive for consistency with regard to substance but not consistency with regard to method?

    Presumably because a majority of the Justices slept through formalism. ;)

    Daniel writes that, “[i]n contrast, theorists strive to develop a consistent method of constitutional interpretation.” To me, that’s only half the battle. The goal is to have a judicial (or quasi-judicial) theory which applies not only to the Constitution but to statutory interpretation as well, and which incorporates stare decisis in some way which coherently explains what the value of precedent is, and when it should be overruled. I don’t think this is necessarily an impossible or even difficult goal.

    To my mind, the approach mandated by a written constitution and in a system where virtually all law is codified is textualism. Where statutory interpretation is concerned, textualists (in my understanding, at least) are not concerned with what the Congress INTENDED to do (even assuming that 536 people can have a singular intent), nor with what the Congress THOUGHT it was doing (if you’ve ever perused the pages of the U.S. code, you’ll understand that the people who wrote this stuff had, at best, a torturous writing style, and at worst, a tenuous command of the English language). Textualists are concerned with what the law says; what is the plain meaning of the words that were enacted, as they would have been understood by any reasonable, educated person fluent in the English language, as 435 fictional reasonable Representatives, 100 fictional reasonable Senators and one fictional reasonable President should have understood the text that they were enacting into law to say.

    Such a theory, of course, maps very consistently across to Constitutional interpretation is one adopts the theory of original meaning. Where does originalism come in? Why not just apply textualism to the Constitution? Answer: you should apply textualism to the Constitution, but in doing so, you must understand that the ordinary meaning of certain words in 1789 was not necessarily the plain meaning today. Originalism – as I view it, at least – is an error-correcting lense that sits neatly over textualism to adjust a plain textualist reading to take account for the toll of time on language.

  6. Bruce says:

    Well, OK, let’s take a stab at the various possibilities. One argument would be for path dependence; the interpretive method that has settled out from previous cases involving a particular clause is the correct one to use. One problem with this argument would be that it would not be very helpful for clauses that had received little attention (e.g., the 14th Amendment Privileges or Immunities Clause), or for new issues of interpretation that arise from multiple clauses (the right to privacy, for example). Also, it would seem to allow for lock-in on a sub-optimal method, based on a command theory of interpretation (“it’s right because we say it is”).

    Another possibility is, as you suggest, an argument that “certain provisions of the Constitution are just more amenable to certain kinds of interpretation.” This might be an interesting avenue to go down; it might capture at least some of what the Court is actually doing. It may be that some provisions of the Constitution are “topic sentences,” deserving of a broad interpretation (the Commerce Clause, the Equal Protection Clause), whereas others are mere supporting sentences or gap-fillers (the Tenth Amendment, the Full Faith & Credit Clause). Or there may be other tests one could use to assign an interpretive method to a particular clause or issue.

    A third option might be a pragmatic ordering: e.g., the Court should adopt a textualist interpretation, unless certain conditions are true that undermine its value as an interpretive aid; in which case the Court goes to the “next best” method, unless certain other conditions obtain, in which case it resorts to the next best method after that, etc.

    Any others?

  7. Simon — how do you address the problem that the Constitution has very broad and vague language in many parts? What about the Ninth Amendment, for example? Also, how do you address the problem that due to several historical upheavals, we have greatly shifted the way our government is configured? On this latter question, the Reconstruction Amendments dramatically made the Bill of Rights apply to the states. Note that the First Amendment begins: “Congress shall . . . ” The Bill of Rights originally weren’t written to address the states. Now they apply. The Constitution wasn’t really designed for the administrative state, but here we are. All documents, over time, unless readily amendable, are subject to acquiring historical barnacles of sorts. Currently, we have a Constitution that must be made to work for a radically different society than the Framers ever imagined. Indeed, many would have been quite surprised that the Constitution would have lasted so long without a major upgrade. The Constitution still works, but it works because of interpretative patches and fixes.

    Bruce — Another method is to a more historical approach; that certain methods of interpretation that may have worked in certain types are no longer persuasive today or are just not appropriate for today’s times. Imagine, for example, if a Supreme Court opinion written in the style of a Marbury v. Madison were penned today. It would seem oddly out of place. Few think and write in that particular manner today. This might not mean that Marbury was wrong or badly crafted — it was well-crafted for the time in which it was made, but now, we’re using different methods of construction. An analogy might be made to architectural style. We might still admire and respect older styles of architecture, yet today build in a different style. It doesn’t mean that the newer style is better — it is just the style of the times. Where I struggle, however, is how to determine normatively what style/method is appropriate for a particular time. I haven’t developed a good set of criteria or a standard for this.

  8. Bruce says:

    Dan, that’s a good point, but I’m not sure what you’re describing is a theory of interpretation, as opposed to a descriptive theory. But one piece of an interpretive theory that relies in some part on historical precedent may be to re-examine those precedents in light of their historical contexts — a method that Chief Justice Rehnquist, referring to a dissent written by Justice Souter, has called “a disservice to the Court’s traditional method of adjudication.” Seminole Tribe v. Florida, 517 U.S. 44, 69 (1996).

  9. Simon says:

    Dan:

    [H]ow do you address the problem that the Constitution has very broad and vague language in many parts? What about the Ninth Amendment, for example?

    You won’t be shocked to know that I have a strong opinion on the ninth and tenth amendments, either. ;)

    There is an argument made that the Ninth Amendment is a potential source of unenumerated rights (see, e.g., Barnett, The Ninth Amendment: It Means What It Says; Droddy, Originalist Justification and the Methodology of Unenumerated Rights), and I’ve seen people arguing that it must mean this, or that it means nothing. I don’t agree with that, and I don’t agree with Bork’s inkblog theory, either.

    I commented on this matter at some length in two adjacent comments at PrawfsBlawg, and so I will only summarize here. I believe that the Ninth Amendment holds very real and pertinent meaning, even if it “only” means what it appears to say, which is that the enumeration in the bill of rights of certain rights of the people is not an EXHAUSTIVE list of the rights of the people. Along with the concern that granting exceptions to powers not granted to the general government might be construed so as to imply greater powers, one of the prime motivations of the framers who opposed the addition of a bill of rights was that listing the rights of the people in the bill of rights might be construed as being a definitive list, which it clearly is not. The ninth amendment says, just because a right isn’t protected by the Federal constitution doesn’t mean it can be protected by a state, just as the tenth amendment says, just because a power isn’t granted to the general government doesn’t mean that it can’t be wielded by a state.

    I do not believe that the Constitution was intended to – or, in effect, does – create unenumerated rights that could be enforced against the states by an unelected Federal judiciary. This seems absolutely contrary to everything we know about the framing of the constitution and the concerns the framers were addressing. The only dissent regarding the federal judiciary at the philly convention was that the constitution should not prescribe a federal judiciary, and rather, that only a supreme court should be spelled out in the constitution, the details of the lower courts left to Congress to work out. That was the extent of the controversy – yet, in that gathering, with those men, surely had there been the slightest suggestion that judges of the general government could pick and choose rights to enforce against the states, would this have not been controversial? They certainly intended for the courts to have the power to strike legislation (see Barnett, The Original Understanding of the Judicial Power), and they provided in the original constitution, and latterly in the bill of rights, a list of what government could and couldn’t do, that the judiciary could enforce. Are we REALLY to believe that, having done so, they said “oh, and you know what? All this plus any rights that the Judge feels is implicit in the concept of ordered liberty”? This seems incredible. Why would the Senate, the defender of the state governments, have permitted to pass an amendment which made the state governments subject to the imaginations of Federal Judges, and a fortiori, why on earth would the states have ratified it? If the original understanding of what became the Ninth Amendment had really been what it is now contended to be by our living documentarian friends, it seems to me that it would never have been ratified!

    Now, it is true that sometimes, the Framers chose words which permitted a wider meaning than they intended, but I do not believe that is the case with the ninth amendment – I think some folks want to find unenumerated rights, and so we go looking for them, and anything that even vaguely resembles them. I think that the problem is that people are looking at the ninth amendment with modern eyes, and they are not considering what the problems the framers were trying to remedy were. We look at those words today, and after two hundred years of the constitution in operation, we just can’t imagine that a provision that seems to be saying something so patently obvious (in hindsight) could actually mean that, so it must mean something else. But that conclusion is ahistoric, and divorced from the concerns of the time.

    Which leaves the question of the tenth amendment.

    We begin with first principles. Power is the ability to infringe upon a right. The source of all power and sovereignty is the right of the people to be governed as they see fit. After the revolutionary war, the people instituted state governments by the mechanism of constitutions – charters which spelled out the functions, structure and limitations of government in their state (limitations in terms of, which rights might not be infringed). The people took from the sum of their rights and granted the states powers.

    A few years later, we get the Constitution of the United States. In ratifying that document, the people instituted a government by the familiar mechanism of a charter which spelled out the functions, structure and limitations of the general government; it also placed certain limitations on the scope of powers that could be wielded by the states.

    In ratifying the U.S. Constitution, a system where everything that is not delegated is retained, those powers which were not granted to the Federal government, nor withheld from the states, remained unaffected. As an abstract matter, all power ultimately remained reserved to the people. However, the people had already instituted their state governments, and invested them with certain powers.

    Therefore, the Tenth Amendment, properly understood, in my view says this: that the federal constitution does not grant the general government more power than it says it does, and except where it explicitly does so (e.g. Art.I §10), it does not change the arrangement of powers and reserved rights between the people and their states that existed pre-ratification.

    Like my reading of the ninth amendment, this reading does NOT render the amendment meaningless. It does, however, mean that what we now take for granted may not have been so obvious prior to the actual practise of the constitution in two centuries in operation. When we read those amendments today, there is a temptation to say “well, duh – federalism, dual sovereignty, blah blah…If THAT was what they were worried about, they had nothing to worry about!”. But again, that is an ahistoric reading that forgets the concerns of the time. Whether they were right or wrong to worry about the balance of power between the people, the states and the general government is moot, because they WERE concerned about it. We must discard our lying modern senses, and try to carry ourselves back to the time that the document was framed, to understand the context of the time and the concerns which lead to the passage of the bill of rights.

    [H]ow do you address the problem that due to several historical upheavals, we have greatly shifted the way our government is configured? On this latter question, the Reconstruction Amendments dramatically made the Bill of Rights apply to the states. Note that the First Amendment begins: “Congress shall . . . ” The Bill of Rights originally weren’t written to address the states. Now they apply.

    As you say, and as Marshall, C.J., said in Barron, the Bill of Rights didn’t apply to the States. There are those who question incorporation, but I’m not one of them; my only objection is that incorporation has been forced to be parsed through the due process clause – which cannot and does not bear such weight – rather than the priveleges & immunities clause, as a result of a misplaced hand-wringing unwillingness to overrule the Slaughterhouse Cases. You raise a good point about the terms of the First Amendment, and I have wrung my hands a little over this at Volokh recently. You are right that by the standards I’ve articulated about the Eleventh Amendment (see my reply to your post yesterday; but these are general principles, as noted here), it is hard to form an argument that we can or should ignore the actual language of the amendment. However, while I am not prepared yet to go so far as Justice Thomas did in his Newdow concurrence, I would point out that the situation in the case of the First Amendment is rather different to the situation of the Eleventh Amendment. Our Eleventh Amendment jurisprudence essentially sets aside a strict textual reading on no basis other than the Court’s conclusion that such a reading is incoherent – a proposition I think to be, at very least, debatable – and it does so only to adopt a jurisprudence which is no less incoherent than the literal reading (see J. Siegel, Waivers of State Sovereign Immunity & The Ideology Of The Eleventh Amendment, 52 Duke L. J. 1167, pp.1174-1182). But it does this, it must be said, with no foundation other than its own precedent. By contrast, if the Court chooses to ignore the presence of the word “Congress” in the First Amendment, and determines its provisions to be incorporable, it can at least point to the provisions and requirements of the Fourteenth Amendment, noting that chronology is a valid tool of inquiry for resolving potential contradictions between amendments (see Seminole Tribe, 517 U.S. 44).

    All documents, over time, unless readily amendable, are subject to acquiring historical barnacles of sorts.

    I don’t agree that the US Constitution is not readily amendable. If you have an amendment on which there is genuine consensus, I think it can be passed. What it isn’t easy to do is for a “discrete and insular minority” to pass hasty and unwise legislation that cannot find broad support. In such circumstances, it is only natural that they will look for alternative avenues to impose their will on the community; it is the Supreme Court’s job to resist such incursions, which is why Roe, for example, is so emblematic of the rot of living constitution jurisprudence.

    Currently, we have a Constitution that must be made to work for a radically different society than the Framers ever imagined.

    And it works, with only a handfull of amendments, magnificently. Balkin stated in his poisonous Slate article a few months back that no one who advocates originalism actually wants to adopt a jurisprudence that is generally in accord with the original understanding. What he means, of course, is that he doesn’t, and a lot of conservative activists who make contradictory statements like “I want a strict constructionist like Scalia” don’t, therefore, no one does. I disagree. I think the Constitution, interpreted as it should be, presents a fully viable model for the running of modern America, without need for further amendment; I don’t think that returning to an original understanding interpretation would necessarily require the passage of a slew of amendments to keep the government alive. Things would be different, of course, but I don’t think that’s necessarily objectionable.

  10. Simon says:

    I noted in my first post above that a judicial theory should include some accounting of stare decisis; I have not, elsewhere in this thread, offered one. I had occaision to pen something quick in another place, and I offer the same thoughts for critique here.

    I can’t speak for how other originalists integrate stare decisis, but here’s my own view of how stare decisis fits into textualism and originalism. First, a truism: any coherent judicial theory MUST a) be based on textualism and originalism, b) contain no internal contradictions between how one approaches statutory construction and constitutional construction, and c) provide a full account of how or if it incorporates stare decisis. Accord comments here.

    My view, then, is as follows. The purpose of stare decisis is to ensure consistency within the law, and vertical stare decisis (i.e. SCOTUS precedent binding lower courts) is generally immutable. However, horizontal stare decisis is merely one factor to consider in constitutional and statutory interpretation. The primary factor is the plain meaning of the text (in cases of Constitutional ajudication, the plain meaning of the text at the time it was ratified), and this plain meaning controls. However, having determined the textual result, prior precedent must always be examined, and provided that past precent is reasonable and consistent with the plain meaning of the text, that line of precedent should control, even if it demands an interpretation that I would not reach as an original matter.

    I conclude this for two reasons. Firstly, because the purpose of stare decisis is to ensure consistency within the law, and it is disputed by no one that this is a desirable result. Laws and constitutions, by necessity, are broadly-written documents, and there are almost always a range of reasonable but mutually exclusive interpretations of how they might apply to specific cases. The need for an internal control mechanism is not obviated by codification, and that leaves us, inexorably, stare decisis. Provided there is a further control mechanism (I advocate textualism) to ensure that the weight of a line of precedent can never trump the plain meaning of the text, I think stare decisis serves that function admirably. Secondly, and more importantly, because I believe that bad lines of precedent are inherent dangerous, lest less scrupuluous judges locate and make use of them. Bad lines of precedent should be found, met head on, and either stopped in their tracks or outright reversed. Sleeping dogs should be left to lie, but precedent is not a dog, and should be rudely awakened lest it wake up and bite us in the ass.

  11. Simon,

    I can’t respond to all your points, because there are so many, but here are a few brief replies.

    You write: “Bad lines of precedent should be found, met head on, and either stopped in their tracks or outright reversed.” What’s a bad line of precedent? How does one identify what is bad and what is merely not-so-great but tolerable?

    Regarding the Ninth Amendment, one of the difficulties with the modern application of the Constitution was that the Constitution was originally designed for a very different system of government. The Bill of Rights were not designed to apply to the states, just to the federal government. That all changed after the Reconstruction Amendments. The problem is that the Bill of Rights weren’t rewritten in light of the fact that they now applied to the states. So the Ninth Amendment makes a lot of sense when applied before the Reconstruction Amendments. But afterwards, it doesn’t seem to make as much sense. Instead of being a preservation of rights as granted to people by their state constitutions, it becomes a way for the Bill of Rights to be read expansively. But given the flip in function from the Bill of Rights, from preserving rights generally supplied by the states to being enforced against states to preserve people’s rights, a new way of reading the Bill of Rights was indeed in order. The old way might not fit after the Reconstruction Amendments, since the purpose of the Bill of Rights has changed.

    Of course, we can speculate about what the Framers would have thought had they designed the Constitution after the Civil War. But they didn’t. I’m not sure that text or original intent gets you the answer. And to what extent do you look at the intent behind the Reconstruction Amendments, which radically transform the Constitution? There’s intent here too, and the Fourteenth Amendment is not just an addition to the Constitution, but a real change in how the Constitution applies and operates.

    On the ease of amending the Constitution, of course it is easy if there’s tremendously wide consensus on an issue, but that begs the question — is the level of consensus required by the Constitution too high? Making the Constitution easier to amend would lessen the power of judges and increase the power of the people. If a court adopts an interpretation of the Constitution that is strongly at odds with what a supermajority of Americans want, then they can change the Constitution. Right now, however, the battles are mainly fought over court personnel — if you want to change the Constitution, look to appointing new judges or justices. True, attempts have been made at amending the Constitution, but most are non-starters. See my post at Balkinization on this issue.

    In the end, I agree in part with Bruce Ackerman — if the Constitution is hard to amend textually, it will be amended via interpretation.

  12. Simon says:

    I’m known to wax prolix. ;)

    I.

    The doctrine of stare decisis protects the legitimate expectations of those who live under the law, and, as Alexander Hamilton observed, is one of the means by which exercise of ‘an arbitrary discretion in the courts’ is restrained. Who ignores it must give reasons, and reasons that go beyond mere demonstration that the overruled opinion was wrong” (Hubbard v. U.S., 514 U.S. 695, 716) (Scalia, J., concurring), but, where a case was clearly wrongly decided, “I do not believe that proper application of stare decisis prevents correction of the mistake” (Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 284) (Scalia, J., dissenting).

    I would define a “bad” line of precedent as cases which cannot be reconciled with the relevant statutory or constitutional text. I consider this to be reason “beyond mere demonstration that the overruled opinion was wrong.” As noted above, I would not demand that a case be decided in the manner that I would have decided it as an original matter for it to be binding, only that the interpretation be reasonable and reconcilable with the controlling text. Only where a case cannot be should the opinion be dismissed, or the case outright overruled.

    II.

    Saying “[i]nstead of being a preservation of rights as granted to people by their state constitutions, it becomes a way for the Bill of Rights to be read expansively” implies that the “old” function is now moot, and that the new function is permissable. I don’t agree that the Civil War amendments either changed the function of the Ninth and Tenth Amendments, nor rendered them moot – if anything, those amendments do not change at all. The only change as a consequence of the 14th amendment, it seems to me is that the Bill of Rights – where not logically incorporable – is incorporated.

    III.

    I would say that a better solution to the problem of the Constitution being hard to amend would be for people to restrain their desire to make everything they can’t win on the political battlefield into a Constitutional issue. It just doesn’t seem to me that the Constitution should be gragged into every debate, as this would seem to defeat the purpose of having a broad framework document in the first place. It would be easier, of course, if we merely had a Westminster system, where the people could simply modify the Constitution per procurationem the legislature, and wherein the laws could evolve organically via stare decisis. That system might even be better than ours, although I would not choose it.

  13. Paul Gowder says:

    Simon, re: your I: how can a Supreme Court case be “wrong” apart from being contrary to binding constitutional/statutory/treaty text? If that’s the only way for a case to be “wrong,” it would seem that demonstrating that would be indeed a “mere demonstration that the overruled opinion was wrong.”

    (I’m not even touching your II. :-) )

  14. Random Dude says:

    if anything, those amendments do not change at all.

    Incorporating the Bill of Rights against the the States certainly limits the powers of state legislatures. That’s a change in the function of those amendments, however minute, even if not a change in the purpose.