Theories Of Constitutional Interpretation Research Articles

The Challenge of originalism: theories of constitutional interpretation

The Challenge of originalism: theories of constitutional interpretation

The Equal Protection Component of the Citizenship Clause

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-a-vis states and not the federal government. The Supreme Court recognized as much in Bolling, but ruled segregation illegal in the District of Columbia anyway. Bolling is now universally recognized as reaching an unquestionably correct result as a policy and moral matter. This recognition makes it all the harder for the adherents of originalism to defend their preferred approach to constitutional interpretation. Originalists are forced to concede that the Constitution, interpreted as originally understood, did not impose equal protection restraints on the federal government, and therefore, Bolling, in imposing these norms where they were not meant to be, was wrongly decided. Recognizing the political (and moral) problem with this approach, originalists have simply attempted to waive the problem away. The problem is that at least in the popular perception “[a] theory of constitutional interpretation that cannot account for Brown [and Bolling] is suspect if not discredited.” Some scholars, Robert Bork and Randy Barnett amongst them, have argued that although Bolling is indefensible as an originalist matter, this is not a real problem. According to them, even if Bolling were overruled no major problems would arise, if for no other reason than the federal government is politically constrained from running segregated schools or otherwise discriminating on the basis of race. This proposition is both dubious as a factual matter (or at the very least was so when Bolling was decided), and is unsatisfactory as a political matter. The general public is simply unlikely to buy into a judicial theory that would permit the federal government to discriminate at will on the basis of race. Accordingly, if originalism is to be broadly accepted by the public without being undermined by the discussion of Bolling and Brown, one needs to come up with a plausible explanation of how the results (if not the rationale) in those two cases can be supported under an originalist approach to constitutional interpretation. In this Article I argue that Bolling is justifiable as an originalist matter if one properly interprets the Citizenship Clause of the Fourteenth Amendment. Properly understood, the clause was meant to protect not just a right to a passport or nationality, but a much broader right of equal participation in the civic life of the Nation. The term “citizen” was understood by the framers and ratifiers of the Fourteenth Amendment to encompass a wide scope of political rights, including a right to equality before the law. When viewed from that perspective, it becomes apparent that Bolling was correctly decided not only from the political perspective, but from legal originalist one as well.

D.C. v. Heller and the Death of Consistent Constitutional Jurisprudence

When ruling on the day's most politicized legal issues, the Supreme Court has abandoned consistent interpretive theory. This paper will examine the Roberts Court's tendency to resolve divisive issues on a policy, rather than legal, basis, and will show that this trend is exemplified by the Court’s landmark Heller opinions. Part I of this paper will discuss the traditional importance of theories of Constitutional interpretation. Part II will examine the Constitutional theory subscribed to and consistently applied by Justice Scalia, perhaps the Court's most outspoken proponent of a consistent and defined interpretive style. Part III of this paper will delve into Justice Scalia's Heller opinion and show that the interpretive model used by the Court is simply an inconsistent gloss used to obscure a political ruling. This paper will conclude by showing that the interpretive inconsistency that marks the Heller opinion is not isolated to the Heller case but rather has become the rule for this Court.

Constitutional Interpretation: Non‐originalism

AbstractDebates over the proper theory of, or approach to, constitutional interpretation rage through many Western constitutional democracies. Although the number of distinct theories, if finely individuated, might match the number of theorists who have entered the fray, it has become customary to group the competing accounts into two broad camps, commonly labeled ‘originalism’ and ‘non‐originalism’. This article presents an overview of non‐originalist approaches to constitutional interpretation. However, because non‐originalism is defined as the negation of originalism – that is, diverse theories are grouped together as ‘non‐originalist,’ not so much by what they commonly affirm, as by what they commonly deny – the project naturally focuses as well on originalist theories of interpretation. After specifying what originalism maintains, and what objections it encounters, the essay sketches some of the more prominent non‐originalist approaches to constitutional interpretation and identifies some of the criticisms they face and worries they provoke. Preliminarily, it explains why ‘theories of constitutional interpretation’ constitute only a subset of ‘theories of judicial review.’

A Mostly Purposivist Century: Theories of Constitutional Interpretation in the 1800s

Resounding in the debate between textualists and purposivists, is a pervasive, if subtle, historical narrative that figures purposivism as a twentieth-century phenomenon and textualism as a new-and-improved version of the text-focused, plain-meaning interpretation that predominated in the nineteenth century. This account gives textualists the historical high ground - the safe, traditional, and conservative choice - and puts purposivists in the position of having to defend a relatively recent and comparatively radical position. This accuracy of this account is belied, however, by nineteenth-century judges’ methods of constitutional interpretation, as expounded by treatise writers of the era. Their theories can be categorized in three groups, none of which is more than superficially textualist. First was an approach popularized by Joseph Story in mid-century that I call plain meaning purposivism. These thinkers embraced a strong plain meaning rule and a text-focused interpretive framework, but they founded their approach on a set of strongly intentionalist and purposivist notions of the overall meaning of the Constitution. This school was followed after the Civil War by a more direct form of purposivism that I refer to simply as conventional purposivism. These purposivists softened the plain-meaning purposivists’ meaning rule and counseled interpreters to more freely use extratextual indicia of constitutional and legislative intent. By the 1880s, a third and non-purposivist group had evolved: evolutionary constitutionalists. In their view, the Constitution should be interpreted not with regard to original intention but with a Burkean, Spencerian understanding of the nation’s evolving cultural, social, and economic character. The nineteenth century, then, was a mostly purposivist age. It was an era in which purposivism, in contrast to evolutionary constitutionalism, was the textually conservative choice, and in which textualism, which is founded on the fundamental rejection of intentionalism, did not exist. An understanding of this history is particularly pertinent today, as our interpretive discourse stands poised to discard purposivism and enter an age of textualist consensus.

ARGUMENTS OF VIRTUE AND CONSTITUTIONAL CRIMINAL PROCEDURE

Though Ronald Dworkin has directed his most recent book, Is Democracy Possible Here?, at a lay audience, its accessibility gives academics an opportunity to consider his more philosophically rigorous works with fresh eyes. In particular, it gives us a chance to re-evaluate Dworkin's distinction between principles and policies and to reconsider the place of arguments of virtue in his theory of constitutional interpretation. Furthermore, we are better able to understand various cases and doctrines in constitutional criminal procedure when we acknowledge the role of arguments of virtue in legal debates.

The Cognitive Dissonance of the New Originalism

The new originalism is the latest de riguer theory of constitutional interpretation. No longer concerned with the majoritarianism or judicial restraint that were the hallmarks of Borkian/Bergerian originalism, the new originalists blithely dismiss precedent as having little, if any, constraining force and contend that the countermajoritarian difficulty is of little concern (though they are not alone in this regard). Parallel to this, there is little concern in the new originalist camp with judicial activism. Suffice it to say, it is not a modest theory. The thesis of this short paper is that perhaps that the new originalists suffer from a form of cognitive dissonance. That is to say, one wonders if the new originalists are not dealing in constitutional reality and are instead rationalizing a constitutional vision that does not square with history or the empirical evidence. It is well-documented that originalists on the bench are far from consistent in their application of originalism. Worse yet, when the justices (both liberal and conservative) utilize originalists arguments, ideological cherry-picking inevitably follows. More than that, the new originalists seem uniformly resistant to recognizing that constitutional law does not happen - and cannot happen - in the original public meaning vacuum they advocate. It is more profitable to understand decisions as the result of the historical and cultural zeitgeist the justices find themselves in. In fact, it is ironic that originalism itself is rather plainly a product of the (partial) triumph of the New Right political movement! If I am right about this, I think it is time for the new originalists to explain how their constitutional vision fits into our historical and empirical reality. If they cannot reconcile their theory with this, perhaps it is time that the new originalists admitted their dissonance and developed some intellectual modesty.

Arguments of Virtue and Constitutional Criminal Procedure

Though Ronald Dworkin has directed his most recent book, Is Democracy Possible Here?, at a lay audience, its accessibility gives academics an opportunity to consider his more philosophically rigorous works with fresh eyes. In particular, it gives us a chance to re-evaluate Dworkin's distinction between principles and policies and to reconsider the place of arguments of virtue in his theory of constitutional interpretation. Furthermore, we are better able to understand various cases and doctrines in constitutional criminal procedure when we acknowledge the role of arguments of virtue in legal debates.

Moral Ambition: The Sermons Of Harry A. Blackmun

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this Service of Death and Resurrection was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on The Churchmanship of Harry Blackmun. Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice's many contributions, Holmes noted a sermon that Blackmun had once preached on the Book of Ruth. Dr. Holmes concluded his eulogy by remarking that Justice Blackmun's theory of Constitutional interpretation was the same as his theory of Biblical interpretation: a theory grounded in compassion. On March 4, 2004 the Justice's papers became available to the public through the Library of Congress. In addition to the sermon on the Book of Ruth, preached in 1992, there was a second sermon, preached in 1987 on the bicentennial of the Constitution. In this essay I will describe how these sermons connect to and illuminate the Justice's jurisprudence. First, I will describe Blackmun's religious upbringing and interests. Next, I will summarize the two sermons. Then I will show how the sermons relate to each other, and to one of the Justice's most famous opinions: his dissent in DeShaney v. Winnebago County D.S.S. One might ask why the sermons of a sitting Justice would be thought to shed any light at all on his jurisprudence, especially in a Justice who, like Blackmun, was careful of the boundaries between church and state. As I show below, recent scholarship has focused on the parallels and similarities between Constitutional and Biblical interpretation. In this essay, I take seriously Dr. Holmes's closing comment and I ask: How similar was Blackmun's interpretive approach to the Constitution and to the Bible?

Barnett and the Constitution We Have Lost

This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.

Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements

This article seeks to resolve the debate over the use of a statutory method for approving international agreements in place of the supermajority process required by the Constitution's Treaty Clause. These congressional-executive agreements, which require only simple majorities in Congress and presidential signature, have become the instrument of choice for entry into some of the nation's most significant international obligations, such as the WTO and NAFTA. Some, such as Bruce Ackerman and David Golove argue that statutes and treaties are interchangeable because a constitutional moment occurred at the end of World War II (in which We the People non-textually amended the Constitution to allow this alternate process). Their critics, such as Laurence Tribe, suggest that the text and structure of the Constitution forbids the use of a statutory method to enter into significant international agreements. Standard foreign relations law doctrine, by contrast, consistently has defended interchangeability, but with little success at explaining how interchangeability is consistent with the constitutional text and structure. This Article provides a constitutional justification for the congressional-executive agreement, one consistent with the text, structure, and history of the Constitution. It shows a clear dividing line that demarcates the situations in which treaties must be the sole instrument of national policy, and those that can be dealt with by the congressional-executive agreement. This Article articulates a theory of treaties that explains the record of practice by the political branches, rather than making normative claims derived simply from different theories of constitutional interpretation. Practice suggests that complete interchangeability ought to be rejected because it creates severe distortions in the American public lawmaking system. Allowing statutes to completely replace treaties eliminates the restrictions upon Congress's enumerated powers and undermines the separation of powers in foreign affairs. Nonetheless, congressional-executive agreements still have a legitimate place in the constitutional conduct of foreign policy, because their use preserves Congress's constitutional powers over matters such as international commerce. Treaties still retain a vital role by allowing the nation to enter into agreements that regulate matters outside of Congress's enumerated powers. Congressional-executive agreements allow the political branches to maintain a separation between treatymaking and lawmaking at a time when the distinction between international and domestic is rapidly disappearing.

Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements

This article seeks to resolve the debate over the use of a statutory method for approving international agreements in place of the supermajority process required by the Constitution's Treaty Clause. These agreements, which require only simple majorities in Congress and presidential signature, have become the instrument of choice for entry into some of the nation's most significant international obligations, such as the WTO and NAFTA. Some, such as Bruce Ackerman and David Golove argue that statutes and treaties are interchangeable because a moment occurred at the end of World War II (in which We the People non-textually amended the Constitution to allow this alternate process). Their critics, such as Laurence Tribe, suggest that the text and structure of the Constitution forbids the use of a statutory method to enter into significant international agreements. Standard foreign relations law doctrine, by contrast, consistently has defended interchangeability, but with little success at explaining how interchangeability is consistent with the constitutional text and structure. This Article provides a constitutional justification for the congressional-executive agreement, one consistent with the text, structure, and history of the Constitution. It shows a clear dividing line that demarcates the situations in which treaties must be the sole instrument of national policy, and those that can be dealt with by the congressional-executive agreement. This Article articulates a theory of treaties that explains the record of practice by the political branches, rather than making normative claims derived simply from different theories of constitutional interpretation. Practice suggests that complete interchangeability ought to be rejected because it creates severe distortions in the American public lawmaking system. Allowing statutes to completely replace treaties eliminates the restrictions upon Congress's enumerated powers and undermines the separation of powers in foreign affairs. Nonetheless, congressional-executive agreements still have a legitimate place in the constitutional conduct of foreign policy, because their use preserves Congress's constitutional powers over matters such as international commerce. Treaties still retain a vital role by allowing the nation to enter into agreements that regulate matters outside of Congress's enumerated powers. Congressional-executive agreements allow the political branches to maintain a separation between treatymaking and lawmaking at a time when the distinction between international and domestic is rapidly disappearing.

Freedom's Law: The Moral Reading of the American Constitution

In Freedom's Law, Ronald Dworkin propounds his theory of constitutional interpretation and applies it to some of the most controversial constitutional issues of the last twenty years, including abortion, affirmative action, pornography, hate speech, gay rights, euthanasia, and free speech. Although each of the chapters of the book was first published as a separate essay, together they provide an engaging and coherent account of Dworkin's constitutional philosophy. In the first part of the book, Dworkin elaborates and argues for what he calls the moral reading of the Constitution. The United States Constitution, like most contemporary constitutions, defines individual rights in very broad and language. The Fourth Amendment, for example, protects against unreasonable searches and seizures. The Eighth Amendment protects against cruel and unusual punishment. According to the moral reading, clauses that incorporate such terms should be construed as referring to abstract moral principles and las] incorporatling] these by reference, as limits on government's power. (p. 7). The moral reading of the Constitution, on Dworkin's view, implies that government must treat all those subject to its dominion as having equal moral and political status; it must attempt, in good faith, to treat them all with equal concern; and it must respect whatever individual freedoms are indispensable to those ends, including but not limited to the freedoms more specifically designated in the document, such as the freedoms of speech and religion. (p. 8). Since constitutional rights are not limited to those specifically mentioned in the Constitution, constitutional interpretation requires the sort of analysis that is common to applied moral philosophy. On Dworkin's view, then, one cannot resolve a constitutional question about what equal protection requires without resolving the corresponding moral question of what the moral notion of equality requires. In this way, Dworkin's theory brings political morality into the heart of constitutional law. (p.2) Unfortunately, Dworkin does not always apply these doctrines consistently in addressing specific legal problems. For example, while the

American Constitutionalism: from theory to politics

Despite the outpouring of works on constitutional theory in the past several decades, no general introduction to the field has been available. Stephen Griffin provides here an original contribution to American constitutional theory in the form of a short, lucid introduction to the subject for scholars and an informed lay audience. He surveys in an unpolemical way the theoretical issues raised by judicial practice in the United States over the past three centuries, particularly since the Warren Court, and locates both theory and practices that have inspired dispute among jurists and scholars in historical context. At the same time he advances an argument about the distinctive nature of our American constitutionalism, regarding it as an instance of the interpenetration of law and politics.American Constitutionalism is unique in considering the perspectives of both law and political science in relation to constitutional theory. Constitutional theories produced by legal scholars do not usually discuss state-centered theories of American politics, the importance of institutions, behaviorist research on judicial decision making, or questions of constitutional reform, but this book takes into account the political science literature on these and other topics. The work also devotes substantial attention to judicial review and its relationship to American democracy and theories of constitutional interpretation.

History Lean: The Reconciliation of Private Property and Representative Government

The question of proper interpretation is a constant theme of legal analysis. The problems can arise with ordinary contracts, with statutes and administrative rules, and of course, with constitutions, including our own. Martin Flaherty's examination of three possible theories of constitutional interpretation'-those of Bruce Ackerman, Cass Sunstein, and myself-adds an instructive chapter to the ongoing debate over the proper understanding of our own Constitution. His critique of my work targets two of my writings on property rights and economic liberties-my article, Toward a Revitalization of the Contract Clause,2 and my book Taking-s3-while ignoring other writings in which I make somewhat greater use of historical sources.4 His learned attack sounds a theme familiar to many historians: the unruly complexity of historical experience cannot be accurately or fully captured in a few pet phrases, and it is not possible to do justice to the historical sources by using history to avoid the need for historical inquiry.5 Rather, the historian should read widely in the literature and dig hard at the primary sources in order to make sense of the cross currents of political and social thought that molded the Constitution. His insistence upon this method stands in sharp contrast to my own preferred view of constitutional interpretation, one that lays little stress upon the historical debates that led up to the adoption of the Constitution, and directs far more attention to specific constitutional language and to overall constitutional structure. In taking this position, I have no desire to suppress evidence that is hostile to my position, or to rely on evidence that selectively bolsters that position, some of which is presented

Why Interpret? Political Justification and American Constitutionalism

This article offers a new understanding of political justification and American constitutionalism. Previous scholarship relies on philosophical justifications of constitutionalism which regard the American Constitution as the blueprint of the good society. Such claims fail to explain why persons should interpret a constitution that does not conform to their conception of political justice. Scholars could offer better reasons for interpreting an imperfect constitution if they placed greater emphasis on two other models of political justification. Institutional justifications of constitutionalism regard Constitutions as standard operating procedures for allocating the resources available for achieving the good society. Social justifications of constitutionalism regard constitutions as compromises among people of fundamentally different views. By combining philosophical, institutional and social perspectives, scholars might strengthen the case for constitutional obedience and provide better foundations for a theory of constitutional interpretation.

Theories of Constitutional Interpretation

IN 1979 ERNEST CHAMBERS was barber who had for nine years represented predominantly black district of Omaha Nebraska Unicameral Legislature. He had been brought up a religious strait-jacket fundamentalist Church of God and Christ, but as he had grown older he had come to renounce Christianity and all belief God. Consequently he was uncomfortable when chaplain hired by legislature opened each session with prayer. In fact he felt compelled to leave legislative chamber, so that he and chaplain were race to see whether chaplain could get to front before Chambers could get out back door.2 The chaplain of Nebraska Legislature during that time was Robert E. Palmer, Presbyterian clergyman who had ministered to legislators since 1965. His prayers were short, almost perfunctory. He strove to make them nonsectarian, to reflect 'just civil religion America, which he understood to consist of the Judeo-Christian tradition, kind of religious expressions that are common to vast, overwhelming majority of most all Americans. He viewed purpose of his prayers to be provision of opportunity for Senators to be drawn closer to their understanding of God as understand God, order that divine wisdom might be theirs as conduct their business for day. And so he would, for example, pray in name of Jesus-our Friend, our Saviour, our Example, our Guide, and he would ask that Senators come to realize that they are part of team working together to win game for benefit of people of this state.3 Chambers attempted to convince his colleagues to end practice of legislative prayer. When refused, he took characteristically American step of filing suit federal court. His claim was elegantly simple: payment of state salary to minister of single Christian denomination for fourteen years for purpose of offering official prayers to state legislature was violation of Establishment Clause of First Amendment to United States Constitution. That clause provides: Congress shall make no law respecting an establishment of religion.4

Theories of Constitutional Interpretation

Theories of Constitutional Interpretation

Who Shall Interpret the Constitution?

The liberal legacy of the Warren Court, the turmoil within and around its successor, and the advent of the bicentennial of 1787 have increased popular as well as scholarly interest in constitutional theory in general and constitutional interpretation in particular. We are now being treated to a new and intense version of an old debate about the nature of the American political system and proper institutional roles in determining the meaning of the principles underlying the polity. This debate highlights not only issues of fundamental disagreement but also central questions that must first be addressed before one can construct a systematic constitutional jurisprudence or a coherent theory of constitutional interpretation.