Theories of Constitutional Interpretation and How to Think About Upcoming Constitutional Cases

I. Introduction

Anytime a constitutional case intersects with the culture wars, you can bet your bottom dollar that everyone on social media will
magically become a constitutional scholar–in their own minds anyway. Yes, folks, merely believing something is sufficient for it being true. But I digress (already)…

In this post, I’m going to give an overview of the various theories of constitutional interpretation and mention a few of the trade-offs that come from selecting one over the other. Later, I’ll suggest how to think about up-coming constitutional cases.

As I run through the various theories, here’s a philosophical question to keep in the back of your mind: What is the purpose of a justice system and a system of laws? 

II. Penumbra Cases and Judicial Discretion 

Most people pre-reflectively conceive of applying the law as a deductive practice. Laws are general commands to do or not do some behavior. If a particular case is an instantiation of a general prohibited or required act then the law applies. For example, a local law might command, “no vehicles allowed in the city park.” This is a general prohibition on a class of behaviors. Suppose that someone drives their car on the walk-ways in the park. A car (particular) is a kind of vehicle (general). It follows that the law has been broken.  Easy peezy, lemon squeezy. Why do we even have lawyers? Just pay me instead.

Now, suppose you want to go to the park with your toddler child. They have a tricycle. Are they allowed to ride it on the walking paths? It’s not clear. It’s a vehicle. But was the intent of the law to exclude even tricycles? Does intent even matter?
Cases where it’s not clear how or if the law applies are called penumbra cases. This is in contrast with the core cases, where the law unambiguously applies. (For the classic article on deduction in the law and penumbra cases, read Oliver Wendell Holmes’ wonderful The Path of the Law.)
Here’s another example of a penumbra case. Congress enacts a law applying a 10% tax to all imported fruits from Mexico. Does the tax apply to tomatoes? In this particular kind of case we have a conflict between “common use” language and “technical” language. Which should we go with and why? Do we go with the understanding that most consumers will have? Or of that of a biologist? In part, our answer will depend on who we think the law serves and to whom it is directed.

Considerations of social utility might also enter. We might also consider legislative intent–why did Congress enact the law in the first place? What were they hoping to achieve? As I hope you can start to see, legal interpretation is not always straight forward. If it were, we likely wouldn’t need a court system. Employing bureaucrats to issue fines and sentences would be sufficient.

In the above cases, the law is unclear for reasons related to the inherent vagueness of language. In other penumbra cases, it’s not clear what to do because the law is silent yet a wrong seems to have occurred. This happens because, among other reasons, it’s impossible for legislators to anticipate every single act that could cause harm to another.

Consider one famous constitutional case–Rochin v. California (1949). In this case, on suspicion of drug dealing, the police entered the open door to Rochin’s residence then forced open his bedroom door. When the police entered his room they noticed two capsules sitting on the bedside table. “Whose are those?” they asked. Rochin reached for them and swallowed them. The police jumped on him tried the force the capsules out of him. Unsuccessful, they handcuffed him and took him to the nearest hospital where they forcibly had his stomach pumped to produce the capsules. The state of California used the opioid capsules as evidence against Rochin. At the time there was no California law against extracting physical evidence from a suspect in this way.

The 14th Amendment forbids any state from depriving “any person of life, liberty, or property, without due process of law.” Was this a violation of due process? On some interpretations, due process simply means that the existing state legal procedures are followed. If stomach-pumping wasn’t prohibited under California law then due process wasn’t violated. There are, of course, other ways to conceive of due process and reasons for why we might think it entails more than simple adherence to whatever state laws are in effect. We’ll circle back to this later.

All this to say, in almost all cases that make it to the Supreme Court, it will not be straight-forwardly clear whether or which law applies, what meaning judges should ascribe to the text of the law, what Congress intended by enacting the law, what reasons legislators had for ratifying the law, which of these considerations should prevail when they conflict, and a whole host of other considerations. In short, judges will have to use discretion in weighing competing variables in their decisions on penumbra cases. 
A long-standing concern with granting judges discretion is that they will rule merely according to their personal convictions. The solution, some say, is to get rid of judicial discretion. But I hope from the albeit short list of examples above you are able to appreciate that judicial discretion is necessary to a functioning legal system. There are libraries of cases where it’s not clear how the law properly ought to apply. Such cases can only be resolved by allowing some degree of judicial discretion.
So, here’s our situation. A justice system requires judicial discretion but there is a legitimate concern that judges could end up using discretion badly. They might use it as a pretext to merely rule according to their own private values: this is particularly worrisome where there is latent or explicit racism. In a democracy, some people think that judicial rulings in penumbra cases ought to reflect the prevailing views of the community rather than a single powerful individual in that community. After all, what could be the legitimate purpose of a justice system if not to render judgements that best accord with that community’s general sense of justice?

To prevent pernicious discretion we need a theory of legal interpretation (also called legal construction) that we apply consistently across cases. When we consistently apply one theory to all cases, a couple of good things might happen:

  1. We reduce the likelihood of pernicious discretion.
  2. The law becomes more predictable because we know in advance how judges might rule on hard cases. This is important because a central purpose of having laws is to govern behavior. Citizens can only make important decisions when they can reasonably predict in advance which sorts of actions will be punished and which won’t.
  3. The law becomes more consistent. The thread from legislation to various later rulings across time will be held together by a common theory of interpretation. Justice–whatever it is–seems to contain the idea that like cases will be treated alike.
  4. The law becomes more stable. When the law changes rapidly over time, it becomes more difficult for people to figure how they may or may not act.
Ok, so what should our theory of construction be?
III. Theories of Constitutional Interpretation

A. Original Legislative Intent: Constitutional laws ought to be interpreted primarily by reference to the reasons why the original legislators voted for/ratified those laws. Most contemporary legal scholars reject this view. Why?

As a citizen, you need to know what you can and can’t do without suffering state punishment. The words of law are the only things publicly available to you to guide these decisions. You don’t have available to you the private reasons for which a legislator supported a law. For example, a legislator might vote for a law not because they support it but because they’ve made a deal with the opposition: I’ll support your law if you support mine–i.e., the one I really care about. The reasons for which a legislator voted for a law are often not public knowledge. It’s in their mind and unknowable to the public. Such a view is inconsistent with the rule of law. Instead it is rule of man (i.e., the subjective reasons of an individual).

Related to this problem is that different legislators might vote for the same law but for different reasons. If we interpret law according to legislative intent, then it’s not clear who’s reasons you ought to interpret as relevant to governing your behavior since the law will have been supported for different reasons.
Another closely related problem is that there can be a difference between legislators’ publicly proclaimed reasons for voting for a law and their private reasons. Which ought to rule? The genuine private reasons or the ones that were politically advantageous to publicly express? 
As I said, most scholars reject legislative intent as a primary means of interpreting constitutional law for the above reasons. 
So, what else could we look at?
B. Strict Construction: On this view, judges have no interpretive discretion to interpret the text of the law except in an extremely literal way. E.g., 1st amendment says Congress shall make no law abridging freedom of speech. That means none—including prohibitions on defamation, yelling “fire” in a crowded theatre, speech to incite riot, etc…. For strict constructionists, judges have no discretion to interpret beyond a rigid literal interpretation of the legal text.

Here’s a famous constitutional case to illustrate the point: In Smith v. United States (1993), Smith offered an undercover officer a machine gun as payment for illegal drugs. Federal law imposes mandatory sentence enhancement penalties, specifically 30 years for a “machinegun”, if a defendant “during and in relation to . . . [a] drug trafficking crime[,] uses . . . a firearm.”

He’s the question: Did Smith “use” a firearm in a drug trafficking crime? A strict constructionist will say “yes.” Strictly speaking, Smith used a firearm. The reasons for the legislation, the intent of the law, and so on have no bearing on interpretation. The Supreme Court ruled 6-3 that Smith had indeed “used” a firearm in a drug trafficking crime and 30 years of prison added to his drug sentence.

Although popular with some at the turn of the 20th Century, not a lot of legal scholars hold this view anymore (despite the Smith ruling). The closest scholarly view to strict construction is Scalia’s textual originalism…(who, to his credit, was one of the three who opposed the majority opinion in Smith vs United States).

C. Textual Originalism: On this view, Constitutional laws ought to be interpreted primarily by reference to the meaning of the words in the text as those words were understood when the law/amendment was ratified.

Let’s take a short step back to understand why the italicized part matters. Ronald Dworkin points out that the Bill of Rights contains deliberately vague abstract clauses: i.e., clauses and terms that require interpretation. Terms like “fair”, “due process”, “equal protection”, “cruel”, “reasonable” and so on by their very nature require interpretation. For example, since Plato and Aristotle people have disagreed over what fairness consists in. And so, we need some theory of construction to tell us how we ought to interpret these abstract terms since people will differ.

Consider a classic example from the 8th Amendment: i.e., the prohibition against “cruel and unusual punishment.” How ought we to interpret “cruel” and “unusual”? For the textual originalist, we ought to understand words in the Constitution as they were originally understood at the time of ratification (1791). So, on this view, any punishment or means of punishment that was not considered cruel and unusual in 1791 ought to still be permissible today. Simply put, the standard for what counts as cruel and unusual was set in 1791. I’ll return to this issue in a moment. But first we need to look at semantic originalism.

D. Semantic Originalism (aka Interpretivism): This distinction will be easiest to understand by way of example. Let’s return to the 8th Amendment which prohibits excessive bail, excessive fines, and cruel and unusual punishments.  The semantic originalist says constitutional construction ought to focus primarily on the original text but that we ought to interpret the vague terms, like cruel and unusual, as they are understood today rather than how they were understood in 1791. (Note that the term “excessive” also requires interpretation and therefore discretion.)

Dworkin, a major proponent of semantic originalism, marks an important distinction between concepts and conceptions. A concept, like “fairness” is a general abstract ideal. People can disagree about whether an arrangement or outcome conforms with fairness because they have different conceptions of fairness. A conception is a particular view about what fairness is. Cultures–both across time and location–will have different conceptions of abstract moral terms.

Dworkin’s point in advocating semantic originalism concerns how we ought to interpret the vague clauses. Cruel, unusual, fair, reasonable, due process, equal protection, excessive, necessary and proper, are all abstract concepts. Different historical times and places will have different conceptions of those general concepts. Judges ought to use discretion in order to interpret these concepts in ways that are consistent with the prevailing conceptions of the current time and culture since these are the people to whom the laws apply.

For example, in Rochin v California, the majority opinion argued that forcibly pumping a person’s stomach for evidence violates our (current) conception of due process:

Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby brutalize the temper of a society. (Justice Frankfurter. My italics for emphasis)

In other words, our political morality today contains a conception of due process that goes beyond merely following whatever laws are in effect. How the state treats its citizens is also relevant to whether it complies with due process even if no particular law is broken.

Here’s another example comparing legislative expectation or intent with semantic originalism: In Brown v Board of Education (1954)  it was argued that segregated schools violated the 14th Amendment; i.e., that “equal protection of the laws” forbids racial segregation in schools. In 1789, when the Amendment was ratified, those who voted for it did not expect or intend for it to prohibit the racial segregation of schools since many of them sustained segregation in their own constituencies. Also, previously in Plessy v Ferguson (1896), the Court had upheld “separate but equal” policies.

Here we see an example of a changing political morality where the particular conception of “equal protection of the law” changed. Should we understand “equal protection of the law” as it was expected to apply by those who ratified the 14th or as it was understood by the prevailing political morality in 1954? (Justices ruled 9-0 in favor of Brown). The semantic originalist supports the latter view. The textual originalist is committed to the former.

The founders were well-read in philosophy and wise. They understood that moral progress didn’t end with them. It’s an ongoing process. As human beings, they are fallible by nature. Their particular moral conceptions might be flawed or incomplete. In fact we know they were since many were slave-holders, didn’t believe women should have the same rights as men, and so on.

On the interpretivist view, it’s inconceivable that the founders expected the vague constitutional clauses to be interpreted forever according to a particular conception tied to a small subsection of the population in 1791. Other Articles and Amendments are very specific. This suggest that, where the drafters wanted to be specific, they were. The vague clauses are deliberately left vague so as to allow them to match the prevailing conceptions of the era in which they are interpreted.

There is a Jeffersonian democratic argument in favor of semantic originalism: Jefferson proclaims that “democracy is for the living.” In other words,  it is an odd view of democracy and justice that insists the living be governed by the norms of the long-dead. In so far as we think law and a justice system ought to produce rulings that reflect the values of the community subject to those rulings, then semantic originalism gets it right.

Let’s recap some of the important philosophical issues going on here. The main debate so far is between Scalia’s textual originalism and Dworkin’s semantic originalism. A good justice system produces rulings that are predictable and consistent across cases. On these criteria, Scalia’s view has an edge. If we always interpret terms–concepts and other words–as they were understood in 1791 then rulings will be predictable, consistent, and stable.

However, we also want a justice system to rule in ways that are consistent with the values and conceptions of the community subject to those laws and justice system. Just like it would be odd for an American court to rule according to what the Taiwanese think is fair, cruel, excessive, etc… it’s also odd to rule according to those terms as they were understood 250 years ago–especially when our conception may have changed, or when they are disputed.

Some argue that this view collapses into either majoritarianism or pernicious judicial discretion. Another important argument against semantic originalism is that it politicizes the Supreme Court. When Justices are understood to rule based on what they take to be the prevailing political morality, competing factions will want to ensure that it is their political morality that determines how vague clauses are understood. What is supposed to be an apolitical branch of government becomes politicized. One reply is to dispute whether the Supreme Court ever was apolitical and it might be best to just be open about its nature. Perhaps openly acknowledging the political nature of the Supreme Court is what is most consistent with democracy!

E. Loose Construction/“True” Originalism (Posner): Constitutional laws ought to be interpreted under the the theory of judicial interpretation that was common when the Constitutional laws were written since this is the theory that the legislators anticipated would be applied to those laws. Loose construction involves

“interpreting the will of the legislator, exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law…As to the effects and consequences, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” –William Blackburn, Commentaries on the Laws of England.

In other words, interpretation requires taking into account a variety of factors that a reasonable judge with discretion may apply. The text of the law is the primary resource but we shouldn’t interpret the text in a way that gives unreasonable judgments.  Justice John Marshall, considered the greatest Supreme Court Justice of his generation, was a loose constructionist. He also, by the by, helped write the Constitution and the Bill of Rights. To summarize, true originalism requires that the Constitution be interpreted with the same theory of interpretation that its drafters thought would be applied to it.

In early constitutional cases that involved the Bill of Rights–when the drafters where still alive–we see both political parties and judges engaged in loose construction. No one assumed that the rights in the Bill of Rights codified fixed meanings. This also gives some support to semantic originalism.

The main criticism here is that with so many permissible variables for judges to appeal to, on ideological cases, they’ll always find a way to simply rule according to their particular ideology. We’re back to the concern over pernicious discretion.

IV. How to Be a Philosopher During the Trump Era
If you’re an educator that teaches political theory and philosophy of law, the Trump administration has an upside. His administration’s actions have brought constitutional questions to the mainstream consciousness and media. This provides a lot of current real-world examples to discuss in class. As you watch these cases enter the media cycle, take a step back and ask yourself which theory of construction various pundits or justices are applying.

Are they being consistent across cases? Virtually every 5-4 decision is split along ideological lines. How likely is it that justices are applying a single theory of construction consistently across cases such that they always happily always end up on their ideological side? Hint: They rarely are in highly politicized cases. (See here and here).

Here’s one main inconsistency to look out for. Very often people who claim to be textual originalists will actually give “expectationist” or intent-based arguments. Let’s return to Brown v Board of Education to illustrate. Someone might oppose the Brown v Board of Education ruling because, clearly, many of the ratifiers did not expect the equal protection clause to have the consequence of prohibiting segregation. In other words, the argument is based on legislative expectation (I.e., how legislators expected the laws to apply) rather than the meaning of the words in the text.

This expectationist view falls prey to the same objections as legislative intent: It’s inconsistent with the rule of law. The text of the law is the public document that governs our behavior–not the private reasons and (conjectures) of legislative expectation.

The semantic originalist will say rulings ought to be governed primarily by how we understand the rights clauses such as due process, equal protection, freedom of speech, excessive, etc… today. However, this is not to say intent or expectations never matter. Everyone’s familiar with the distinction between the letter and the spirit of the law….

So there you have it. Thanks to my handy-dandy summary of methods, you too can join all the other online self-anointed constitutional scholars!

V. Final Thoughts
In the introduction, I suggested you keep a question in the back of your mind: What is the purpose of a justice system and a system of laws? Our answer to this question should bear on which theory of constitutional construction we support. Selecting an answer is not so simple because we don’t just want one thing from a justice system, and different theories order those desiderata differently, in turn requiring different trade-offs. We want the law to be predictable, stable, and consistent. However, even if a theory of construction gives us all that, something important is missing if it doesn’t yield judgments that accord with a community’s sense of justice,.

And even this criteria isn’t decisive because we need to acknowledge that in a large political community there will rarely be homogenous values and conceptions. If we always favor the majority’s values and conceptions then we risk subverting the very purpose of many rights clauses–to protect minorities from the tyranny of the majority. But if we always favor minority views then the justice system can fail to represent the values, beliefs, and preferences of the majority–which is also a problem. Threading the needle in a principled way is no easy task.

Next time a constitutional issue makes the front page or your favorite podcast, take a moment to reflect on these questions in the context of the issue. Hopefully, it will allow you to appreciate the complexity that often isn’t captured by today’s media…but is if you take a philosophy class!

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