Constitutional Interpretation

The American political order is based on and constituted by a fundamental written text, the United States Constitution. This centrality of text is similar to the foundational role of written texts for Judaism, Christianity, and Islam. Although we normally accept the Constitution without question, living in terms of and under the authority of a written text is a truly remarkable phenomenon, one that makes interpretation of that text central to the existence and viability of the political order the text creates. As William Harris has written, “American constitutional interpretation takes for granted the elemental preposterousness of its subject, namely the presumption that a political world can be constructed and controlled with words” ( Harris 1982, 34 ). This is the premise that makes interpretation central to American constitutionalism. Language matters politically, with the consequence that the interpretation of language matters politically.

The interpretation of the text of the Constitution is central because in the American political order the Constitution has the status of fundamental law, a status expressed by the principle that if any act of government is contrary to the Constitution, then that act is null and void. As Alexander Hamilton stated this principle in Federalist No. 84 with regard to Congress, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the Constitution can be valid” ( Hamilton, Madison, and Jay 2005, 414 ). However, the need to determine whether an act of government is indeed contrary to the Constitution has established three questions that have come to be seen as integral to constitutional interpretation: the “What?” question, the “Who?” question, and the “How?” question ( see Murphy, Fleming, Barber, and Macedo 2014 ).

THE “WHAT?” QUESTION

The “What?” question has to do with what counts as the Constitution. For example, given the assumption that judges may exercise judicial review of legislative and other acts of government only on the basis of norms found in the Constitution, some scholars, such as Thomas Grey ( 1975 ), have asked whether there is an unwritten dimension to the Constitution. This question goes back at least to the argument between Justice Samuel Chase and Justice James Iredell in the case of Calder v. Bull, 3 U.S. 386 ( 1798 ). Justice Chase famously stated, “I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without controul; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State” ( 3 U.S. at 387–88

This debate over what counts as the Constitution has continued into contemporary constitutional argument. In a classic 1979 article, Sanford Levinson suggested a parallel between biblical interpretation and constitutional interpretation and for both distinguished between what he called a “catholic” and a “protestant” mode of interpretation. According to Levinson, “the catholic position is that the source of doctrine is the text of the Constitution plus unwritten tradition,” a position he ascribed to Justice John Marshall Harlan, whereas “the protestant position is that it is the constitutional text alone,” a position he ascribed to Justice Hugo Black ( Levinson 1979, 132 ). The basic issue in the various versions of this debate over what constitutes the Constitution is the problem of determinacy and objectivity. Is the written text of the Constitution the only basis for determinate standards and norms that judges can apply objectively, or are such standards and norms available in an unwritten dimension of the Constitution as well?

THE “WHO?” QUESTION

The second question integral to constitutional interpretation is the “Who?” question. The principle that any act of government contrary to the Constitution is null and void immediately raises the question, who is authorized to make that determination? The answer that has come to be the dominant position, from Marbury v. Madison, 5 U.S. 137 ( 1803 ), is that because issues of constitutionality are essentially legal in nature, “[i]t is emphatically the province and duty of the Judicial Department to say what the law is” (5 U.S. at 177). To be sure, because all government officials have the duty to support the Constitution, everyone makes constitutional judgments implicitly if not explicitly. For example, when Congress passes a bill and the president signs it into law, the legislative and executive branches of the federal government have in essence taken the position that the law is constitutional. The consequence Jefferson drew from this fact was the second answer to the “Who?” question: “each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal” ( Jefferson 1819 ). This is the position known as departmentalism or coordinate review—the separate but equal branches of the federal government each have the authority to make their own constitutional judgments that must be respected by the other branches.

Representing the first position, however, Hamilton argued in Federalist No. 78 that “if it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution” ( Hamilton, Madison, and Jay 2005, 414 ). Rather, “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority” ( Hamilton, Madison, and Jay 2005, 414–15 ). This view does not, he maintained, constitute the judicial supremacy that Jefferson feared.

In addition to the Hamiltonian and Jeffersonian answers to the “Who?” question, one other answer has suggested itself over the years. Based on the premise that it was “We the People” who ratified the Constitution and thus granted it its authority, this answer argues that only “We the People” have the authority to decide constitutional questions. To allow one or all of the branches of the federal government to make constitutional judgments would be to allow an institution that the Constitution creates and to which it assigns powers to claim interpretive supremacy over the very act of popular sovereignty that created it. Instead, this third answer to the “Who?” question is that it is the role of “We the People,” acting through the ordinary political process in addition to the formal amendment process, to make constitutional judgments. The contemporary version of this position, as in books by Mark Tushnet ( 2000 ) and Larry Kramer ( 2004 ), has come to be called popular constitutionalism. Although some early supporters might have assumed that popular constitutionalism could be a way for liberals to overcome the decisions of a conservative Supreme Court, the Tea Party movement, as Jared Goldstein ( 2011 ) points out, is evidence that popular constitutionalism can support conservative views. This third answer to the “Who?” question must still contend with Madison's argument in Federalist No. 49 against appeals of constitutional issues to the people: “as every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability” ( Hamilton, Madison, and Jay 2005, 274 ).

THE “HOW?” QUESTION

This point makes clear that answering the “What?” question does not dictate an answer to the “How?” question so much as an answer to the “How?” question determines our answer to the “What?” question. The Constitution does not exist independently of interpretation. Conventional modalities of constitutional interpretation, such as those Philip Bobbitt ( 1984 ) has labeled historical argument, textual argument, structural argument, prudential argument, doctrinal argument, and ethical argument, all come into play in the ordinary task of determining what a constitutional provision means without explicitly raising this broader interpretive issue. It is at a more theoretical level of constitutional interpretation that we find substantial disagreement because of the political significance of the practice. That disagreement is currently known as the conflict between originalism and nonoriginalism, which has generated an enormous scholarly literature.

ORIGINALISM

Originalism, most succinctly, is the interpretive theory that any given provision of the Constitution must be understood the way those who wrote and ratified that provision understood it ( see Goldford 2005 ). For example, if we want to know the meaning of “cruel and unusual punishment” in the Eighth Amendment, we must learn what people in 1791 understood it to be. The approach, as Antonin Scalia has written, “requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day. It is, in short, a task sometimes better suited to the historian than the lawyer” ( Scalia 1988–89, 856–57 ). In its early iteration, as in the work of Raoul Berger ( 1977 ), originalism privileged the concept of original intention; but various practical and theoretical difficulties led supporters such as Robert Bork ( 1990 ) and Keith Whittington ( 1999, 2004 ) to focus on the concept of original meaning or understanding. The central concern behind originalism is that only by privileging the original meaning can electorally unaccountable judges avoid the temptation to rule on the basis of their own values and preferences.

By contrast, nonoriginalism, which is sometimes called the theory of the living Constitution, argues that the meaning of a particular provision is what the text means to us today. Regarding the meaning of “cruel and unusual punishment,” then, the question is what contemporary society, rather than that of 1791, understands the text to mean today. As David Strauss ( 2010 ) observes, the central concern behind nonoriginalism is that, with its rejection of what is often called the dead hand of the past, only this theory can explain the legitimacy of landmark decisions like Brown v. Board of Education, 347 U.S. 483 ( 1954 ), which ended statesanctioned school segregation. Nonoriginalists argue that originalism cannot survive its practical and theoretical difficulties, and, more fundamentally, that the originalist method summarized by Justice Scalia above is simply not possible.

The originalist response to this argument is either to try to find originalist grounds for supporting a decision like Brown, or to claim that other such modern decisions, like Roe v. Wade, 410 U.S. 113 ( 1973 ), are simply wrong and illegitimate. On the originalist approach, then, the Framers charged the Supreme Court “with the task, not of keeping the Constitution in tune with the times but, to the extent possible, of keeping the times in tune with the Constitution” ( Berns 1987, 236 ). Most important, from the originalist perspective, nonoriginalism is incapable of preventing judges from straying from what the Constitution requires or allows into what their own values and preferences require or allow.

There have been several attempts to resolve, if not dissolve, the originalism–nonoriginalism debate over the “How?” question ( see Dworkin 1986; Goldford 2005 ), with Jack Balkin ( 2011

Constitutional interpretation is highly complex, contested, and even controversial, yet necessary to and omnipresent in the American system of governance. Americans are a people that live textually, so to speak: in the terms and within the terms of a fundamental text that constitutes the American political order. Thus interpretation is fundamental.

SEE ALSO Constitutional Authority ; Constitutional Interpretation by Citizens ; Departmentalism ; Governance ; Judicial Review ; Judicial Supremacy .

BIBLIOGRAPHY

Balkin, Jack M. Living Originalism. Cambridge, MA: Belknap Press of Harvard University Press, 2011.

Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard University Press, 1977.

Berns, Walter. Taking the Constitution Seriously. New York: Simon and Schuster, 1987.

Bobbitt, Philip. Constitutional Fate: Theory of the Constitution. New York: Oxford University Press, 1984.

Bork, Robert. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.

Dworkin, Ronald. Law's Empire. Cambridge, MA: Belknap Press of Harvard University Press, 1986.

Goldford, Dennis. The American Constitution and the Debate over Originalism. Cambridge, UK, and New York: Cambridge University Press, 2005.

Goldstein, Jared A. “The Tea Party Movement and the Perils of Popular Originalism.” Arizona Law Review 53 (2011): 827–86.

Grey, Thomas. “Do We Have an Unwritten Constitution?” Stanford Law Review 27 (1975): 703.

Hamilton, Alexander, James Madison, and John Jay. The Federalist, edited by J. R. Pole. Indianapolis: Hackett, 2005.

Harris, William F., II. “Bonding Word and Polity: The Logic of American Constitutionalism.” American Political Science Review 76, no. 1 (1982): 34–45.

Jefferson, Thomas. Thomas Jefferson to Spencer Roane. 6 September 1819. The Founders' Constitution: Volume 3, Article 1, Section 8, clause 18, Document 16. University of Chicago Press. http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html ., Kramer Larry D. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press, 2004.

Levinson, Sanford. “The ‘Constitution’ in American Civil Religion.” Supreme Court Review 1979 (1979): 123–51.

Murphy, Walter F., James E. Fleming, Sotirios A. Barber, and Stephen Macedo. American Constitutional Interpretation. 5th ed. St. Paul, MN: Foundation Press, 2014.

Scalia, Antonin. “Originalism: The Lesser Evil.” University of Cincinnati Law Review 57 (1988–89): 849–65.

Strauss, David A. The Living Constitution. Oxford, UK, and New York: Oxford University Press, 2010.

Tushnet, Mark. Taking the Constitution Away from the Courts. Princeton, NJ: Princeton University Press, 2000.

Whittington, Keith E. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence: University Press of Kansas, 1999.

Whittington, Keith E. “The New Originalism.” Georgetown Journal of Law and Public Policy 2 (2004): 599–613.

Dennis J. Goldford
Drake University