Constitutional Interpretation

Author:Paul Brest

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"Constitutional interpretation" comprehends the methods or strategies available to people attempting to resolve disputes about the meaning or application of the Constitution. The possible sources for interpretation include the text of the Constitution, its "original history," including the general social and political context in which it was adopted as well as the events immediately surrounding its adoption, the governmental structures created and recognized by the Constitution, the "ongoing history" of interpretations of the Constitution, and the social, political, and moral values of the interpreter's society or some subgroup of the society. The term "originalist" refers to interpretation concerned with the first three of these sources.

The extraordinary current interest in constitutional interpretation is partly the result of controversy over the SUPREME COURT'S expansive readings of the FOURTEENTH AMENDMENT; it also parallels developments in literary theory and more generally the humanities. Received notions about the intrinsic meaning of words or texts, access to an author's intentions, and the very notion of "validity" in interpretation have been forcefully attacked and vehemently defended by philosophers, literary theorists, social scientists, and historians of knowledge. Legal writers have imported scholarship from these disciplines into their own, and some humanists have become interested in legal interpretation.

Issues of interpretive methodology have always been politically charged?certainly so in constitutional law. JOHN MARSHALL'S foundational decisions asserting the power of the central government were met by claims that he had willfully misconstrued the document. In our own time, modernist interpretive theories tend to be invoked by proponents of JUDICIAL ACTIVISM, and more conventional views by its opponents. The controversy within the humanities and the social sciences is itself deeply political, for the modernist assertion that truth or validity is socially constructed and hence contingent is often perceived as destabilizing or delegitimating.

The Constitution is a political document; it serves political ends; its interpretations are political acts. Any theory of constitutional interpretation therefore presupposes a normative theory of the Constitution itself?a theory, for example, about the constraints that the words and intentions of the adopters should impose on those who apply or interpret the Constitution. As Ronald Dworkin observed,

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"Some parts of any constitutional theory must be independent of the intentions or beliefs or indeed the acts of the people the theory designates as Framers. Some part must stand on its own political or moral theory; otherwise the theory would be wholly circular."

The eclectic practices of interpreters and the continuing debate over the appropriate methods or strategies of constitutional interpretation suggest that we have no unitary, received theory of the Constitution. The American tradition of constitutional interpretation accords considerable authority to the language of the Constitution, its adopters' purposes, and the implications of the structures created and recognized by the Constitution. But our tradition also accords authority to precedents and the judicial exegesis of social values and practices, even when these diverge from plausible readings of the text and original understandings.

Any theory of constitutional interpretation must start from the fact that we have a written Constitution. Why is the written Constitution treated as binding? Because, as Chief Justice Marshall asserted in MARBURY V. MADISON (1803), it is law?the supreme law of the land?and because since 1789 public institutions and the citizenry have treated it as an authoritative legal document. It is no exaggeration to say that the written Constitution lies at the core of the American "civil religion."

Doubtless, the most frequently invoked canon of textual interpretation is the "plain meaning rule." Marshall wrote in STURGES V. CROWNINSHIELD (1819):

[A]lthough the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words.? [I]f, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.

Marshall did not equate "plain" meaning with "literal" meaning, but rather (as Justice OLIVER WENDELL HOLMES later put it) the meaning that it would have for "a normal speaker of English" under the circumstances in which it was used. The distinction is nicely illustrated by Chief Justice Marshall's opinion in MCCULLOCH V. MARYLAND (1819), decided the same year as Sturges. Maryland had argued that the NECESSARY AND PROPER clause of Article I authorized Congress only to enact legislation "indispensable" to executing the ENUMERATED POWERS. Marshall responded with the observation that the word "necessary," as used "in the common affairs of the world, or in approved authors, ? frequently imports no more than that one thing is convenient, or useful, or essential to another." He continued:

Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction that many words which import something excessive, should be understood in a more mitigated sense?in that sense which common usage justifies.? This word, then, like others, is used in various senses; and in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.

To read a provision without regard to its context and likely purposes will yield either unresolvable indeterminacies or plain nonsense. An interpreter could not, for example, decide whether the FIRST AMENDMENT'S " FREEDOM OF SPEECH " encompassed singing, flag-waving, and criminal solicitation; or whether the "writings" protected by the COPYRIGHT clause included photographs, sculptures, performances, television broadcasts, and computer programs. She would not know whether the provision in Article II that "No person except a natural born Citizen ? shall be eligible to the Office of President" disqualified persons born abroad or those born by Caesarian section. We can identify interpretations as compelling, plausible, or beyond the pale only because we think we understand the concerns that underlie the provisions.

One's understanding of a provision, including the concerns that underlie it, depends partly on the ideological or political presuppositions one brings to the interpretive enterprise. Marshall could so readily label Maryland's construction of the word "necessary" as excessive because of his antecedent conception of a "constitution" as essentially different from a legal code?as a document "intended to endure for ages to come"?and because of his beliefs about the structure of FEDERALISM implicit in the United States Constitution. A judge starting from different premises might have found Maryland's construction more plausible.

A meaning thus is "plain" when it follows from the interpreter's presuppositions and when these presuppositions are shared within the society or at least within the relevant "community of interpretation"?for example, the legal profession. Kenneth Abraham has remarked, "The plain is plain because it is constantly recurring in similar contexts and there is general agreement about the meaning of language that may be applied to it. In short, meaning is a function of agreement.?"

When a provision is interpreted roughly contemporaneously with its adoption, an interpreter unconsciously

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places it in the social and linguistic context of her society. Over the course of several centuries, however, even a relatively stable nation will undergo changes?in social and economic relations, in technology, and ultimately in values?to an extent that a later interpreter cannot readily assume that she has direct access to the contexts in which a constitutional provision was adopted. This poses both a normative and a methodological question for the modern interpreter: should she attempt to read provisions in their original social and linguistic contexts, or in a modern context, or in some way that mediates between the two? And, to the extent that the original contexts are relevant, how can she ascertain them?

Original history includes "legislative history"?the debates and proceedings in the conventions and legislatures that proposed and adopted constitutional provisions?and the broader social, economic, and...

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