A couple of years ago, I wrote an article to provide a summary of the methods of Constitutional Interpretation. This article is simply a repost of that material.
Originalism vs. Contemporary
Much of the conflict in political discussions arises because of differences of opinion between originalism and contemporary methods of interpreting the Constitution. People ask, “should the courts only rule per what the founders thought during the ratification of the Constitution?” or “should the courts only rule by applying the constitution to the definitions we use today?”
However, the question is not so simple. Throughout time, the court has applied several methods of interpreting the Constitution in their rulings.
Below is a list of ways the court has interpreted the Constitution. We will explore the controversy between Originalism and Contemporary methods in another article.
Originalists often examine the Constitution by examining the intent of the framers or the meaning of a clause. There are several kinds of originalists; textualists, historians, and structuralists.
However, each field is more specific. For instance, Scalia, a former Supreme Court justice, said he was always a textualist but not always an originalist.
Textualism looks at the definitions of the text at the time the Constitution was written. A textualist would likely grab a dictionary from 1787, look at the terms to be interpreted, and rule accordingly.
Another originalist approach is to examine the history surrounding the text. Often, this requires the interpreter to look at what the founders meant when they wrote down the words. Researchers will often find other documents written by founders explaining what they meant as they deliberated at the Constitutional Convention.
For instance, the word “commerce” commonly meant “traffic” or “travel” in the late 1800s. The courts used this knowledge to give Congress control to regulate goods that traveled over state borders.
Structural analysis suggests that particular clauses should follow the overarching structures or governing principles established in the Constitution. In other words, the courts should interpret a clause to support government principles such as federalism (separation of federal and state governments), the democratic process, and separation of powers between the branches of government.
An ethical analysis argues that the Constitution enshrines and protects moral values. They will then interpret the Constitution to continue to protect those moral values over time. Often, this requires the text of the Constitution to be interpreted fluidly rather than rigid.
One example is the court’s adoption of the right to privacy. The constitution does not explicitly protect privacy in the text. However, many Amendments have implied that there is a right to privacy. Consequently, the court has ruled in several cases to protect that right.
Sometimes, the court will use polling data to make their decisions. For instance, in their analysis, the courts might evaluate the number of states that agree with a certain concern.
Kind of In the Middle
Stare Decisis or Doctrinal
Stare Decisis is Latin and means “stand by things decided.” Using this method, the courts will use former cases to evaluate the results of a current case. The process of using earlier cases is called precedent.
Whether the court previously decided a case using originalist or contemporary methods, later cases are usually interpreted the same way. If the majority of the court decides to move away from precedent, the minority often complains.
Pragmatism or Prudential
Pragmatism explores several methods of Constitutional interpretation, weighs the pros and cons of every argument, and adopts the method that best avoids negative consequences. Those who use pragmatism are typically those who try and make everyone happy.
Many Justices claim to subscribe to only one form of Constitutional interpretation. However, these Justices often switch methods when one of their core values may be challenged. This change may occur because of a conflict between legal and political issues.
These 7 ways to interpret the constitution are often only legally based; however, political ideology may also play a role in how Justices may rule.
I argue that this intertwining between legal rulings and political ideology is unavoidable, but Justices must develop a balance between the two to maintain legitimacy as a branch of government.