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Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation (see statutory interpretation). An interpretation which results in or supports some form of law-making role for the judiciary in interpreting the law is sometimes pejoratively characterized as judicial activism, the opposite of which is judicial lethargy, with judicial restraint somewhere in between.


Interpreting the Constitution of the United States


The contextualist approach

Like originalism and textualism, the contextualist approach is concerned with an original meaning of the text itself to those who wrote the text, but instead of a subjective intent, it seeks to examine the broad context in which the provision at issue was promulgated, arguing that, in some important respect, the provision can only be understood relative to its context.

This context can be one of two types:

  • Facial contextualism -- examining why the provision is located where it is in the whole document
  • Historical contextualism -- examining the broad and long history behind the provision to determine the broadest possible intent.

Historical contextualism was the main theory of interpretation that the Supreme Court used from the 1880s through the 1920s, resulting in such decisions as Plessy v. Ferguson (upholding racial segregation because the broad historical context of the Thirteenth Amendment and Fourteenth Amendment did not support the idea that they were intended to prevent states from separating races), Lochner v. New York (striking down maximum hour laws because they violated the Fourteenth Amendment's contextual "general right to make a contract in relation to his business"), and Bailey v. Drexel Furniture Co. (striking down a tax on child labor because the context of Article I of the Constitution was such that the framers intended taxes not to function as regulations).

One main proponent of historical contextualism, Chief Justice William Howard Taft, explained the approach as this:

  • "The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood."[1]

For example, Taft used the broad historical context of the Fourth Amendment to determine in Olmstead v. United States that wiretapping was not subject to the Fourth Amendment's warrant restrictions because it was not a "physical" intrusion. Notably, however, this same instance shows some of the drawbacks of contextualism: in Katz v. United States, a developmentalist outlook, using evolving standards of decency, determined that the Fourth Amendment ought to protect people and not just physical places, and so wiretapping should be subject to the Fourth Amendment's warrant restrictions, too. Opponents of historical contextualism, then, often argue that a purely contextualist outlook prohibits the Constitution from adapting to different cultural, technological, and social developments. Contextualists counter this criticism by pointing to Article Five of the United States Constitution, in which the Framers provided a means for amending the Constitution so as to suit the needs of the times.

The developmentalist approach

The developmentalist approach builds on doctrinalism by accepting the value of incremental additions of judge-made doctrine, but goes further by enlarging the interpretive arena to include broader historical events, such as informal practices, usages, and political culture. Developmentalists reject both the notions of a static constitution and of "The Moral Constitution", and instead tend to focus on "how meaning has evolved." Chief Justice Earl Warren exemplified this when he said the Constitution ought to be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society." Accordingly, proponents of developmentalism often argue the theory of the Living Constitution, which premises that the Constitution is, to some degree, dynamic. Because of this, however, developmentalism can be assailed on many of the same points as doctrinalism. For example, it does little to advance any goal of stability, for by its very nature it commits itself to the legitimacy of what it calls "constitutional change" not merely from the past to the present but also from the present to an unknown future. As such, a common criticism is that it makes the Constitution "mean nothing," because it holds that it can mean "anything."

The doctrinalist approach

The doctrinalist approach searches out past interpretations of the Constitution as they relate to specific problems and tries to organize them into a coherent whole, fitting the solution of the current problem at issue into that whole. Doctrinalism gives a central place to the principle of stare decisis, seeking to extend received decisions and understandings in incremental fashion to cover new cases and problems as they arise. In doing so, it attempts to preserve the continuity of the common law even if effecting change. This method is often used to teach constitutional law in American law schools, where casebooks often are organized topically. Doctrinalism, like all approaches, has its own difficulties. For example, textualists argue that doctrinalism distracts attention from the Constitution itself, placing too much emphasis on commentary on the text. For example, Justice Felix Frankfurter wrote, "the ulimate touchstone of constitutionality is the Constitution itself and not what we have said about it." Another criticism, levied by jurists like Antonin Scalia, is that doctrinalism allows for too much judicial discretion.

The originalist approach

The originalist approach aspires to interpret constitutional text in light of original intentions or understandings of the founding fathers who wrote the Constitution. Advocates of originalism are centrally concerned with discovering the subjective intentions of the figures who wrote or framed particular constitutional provisions. They tend to focus on the original public meaning or understanding of a constitutional provision for the generation that ratified or amended that provision. Originalism, of course, has its own liabilities, including determining what counts as evidence of intent, whose intent counts, and whether the promulgated intent should be abstract or concrete. Accordingly, one common criticism of originalism is that an originalist, while claiming to interpret a provision based on the original intent behind it, might actually pick and choose from a variety of sources to meet a desired interpretation.

Originalism differs from Textualism in that it looks to the subjective intent of the lawmaker, instead of looking to the objective meaning of the language as understood (by any reasonably well-educated third party) at the time of its enactment.

The structuralist approach

The structuralist approach proposes to decide hard cases by looking for guidance in the Constitution's general arrangement of offices and powers. In so doing, it is related to facial contextualism. That general arrangement might be characterized as a form of democracy or representative, deliberative, or constitutionalist government. This approach differs from textualism or strict constructionism because it notes that none of the Constitution's principal structural ideas, such as separation of powers, checks and balances, federalism, democracy, or fundamental rights, is expressly mentioned in the text. Proponents of structuralism explain and justify their decisions by advancing claims about the proper understanding of constitutional structure. Chief Justice Salmon P. Chase advanced such claims when examining in Texas v. White what deference ought to be given to decisions of Confederate states' courts once the American Civil War was over; he held for both the perpetuity of the union and the possibility of divisibility "through revolution, or through consent of the States."[2][3] Chief Justice John Marshall also advanced a structuralist outlook when discussing his conception of federal-state relations in McCulloch v. Maryland. Still, structuralism lends itself to opposition which argues that it is too subjective, without any formal basis for making its claims because it lacks textual, contextual, or historical support.

The textualist and strict constructionist approach

The Strict Constructionist approach to interpreting the Constitution, insists on the literal meaning of a provision in the face of contrary claims that the text must mean more or less than it expressly says. This approach appeals to the promises of simplicity and determinacy. For example, Supreme Court Justice Hugo Black insisted that the First Amendment's command that "Congress shall make no law ... abridging the freedom of speech" meant exactly that, "no law."

Strict Construction's simplicity and its determinacy, however, can also be liabilities. Provisions of a text, when read as units in isolation, can be rigid. Reading sentences of the Constitution in isolation, in the name of a "strict construction", can leave questions about whether the meaning of the text at issue can be interpreted without context. As such, it is not at all clear for example whether written language is speech in the literal sense. Although a strict constructionist might argue that "no law" can be passed abridging the freedom of speech, that constructionist might not believe that acts of treason are protected speech, or that shouting "fire!" in a crowded theater is protected speech.

Textualism is a similar philosophy of interpretation, though with significant differences. Textualists, like Antonin Scalia on the U.S. Supreme Court, agree with Strict Constructionists that the proper scope of inquiry into Constitutional interpretation begins and ends with the text itself—not with the intent of the writers, the philosophies of judges, or the consensus of society. However, Textualism differs from Strict Constructionism in its appreciation for context and its search for the understood meaning of constitutional language, as opposed to the literal meaning of the words in isolation.

A central argument by adherents of both textualism and strict constructionalism is that less-strict interpretations of the constitution can become a method of legislative activism by judges, which they feel is an abuse of judicial power. This concern might be phrased as "making the law say what you think it should say, rather than submitting to what it does say." This would be a form of judicial usurpation of legislative power. Another argument for constructionalism is the assertion that the original constitution does not allow for judicial interpretation in any form. The Supreme Court's power for constitutional review, and by extension its interpretation, was essentially self-assigned in Marbury v. Madison in 1803. This argument intends to negate certain arguments for a developmentalist approach. For example, some would support the doctrine of the "living Constitution" with an assertion that the original framers could not come to a consensus about how to interpret the Constitution -- or that, indeed, they never intended any fixed method of interpretation. This would then leave future generations free to reexamine for themselves how to interpret the Constitution. A strict constructionalist would then reply that a "living Constitution" relies on an argument regarding the interpretation of the Constitution that is not supported by the initial document. In adjudicating this argument, it is notable that Article III grants "judicial Power" and "Jurisdiction, both as to Law and Fact" to the "supreme Court." This power and jurisdiction is not further explicated in the text of the Constitution.

See also


  1. ^ Ex parte Grossman, 267 U.S. 87, 109 (1925)
  2. ^ Aleksandar Pavković, Peter Radan, Creating New States: Theory and Practice of Secession, p. 222, Ashgate Publishing, Ltd., 2007.
  3. ^ Texas v. White, 74 U.S. 700 (1868) at Cornell University Law School Supreme Court collection.


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