Formalist Constitutional Interpretation

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 278

ß 9 1 Introduction to Formalist Decisionmaking

As discussed at ß 3.1, being a positivist theory of law, the formalist sees the judge as an impartial declarer of the law who attempts to decide cases in light of existing positive law. Being an analytic, positivist theory of law, formalism has a preference for clear, bright-line rules that are capable of mechanical application. Thus, in its purest form, the formalist decisionmaking style views the judge's role as the logical, mechanical restatement of the meaning placed into the Constitution by the framers and ratifiers. The elements of this formalist style of interpretation are discussed at ß 9.2.

As discussed at ß 9.3, during the 20th century there have been on the Court extreme formalists, such as Justices Van Devanter, McReynolds, Sutherland, and Butler in the 1920s and 1930s, and Justice Scalia on the Court today. There have also been moderate formalists, such as Chief Justice Hughes and Justice Owen Roberts in the 1930s; Chief Justice Burger, during the 1970s and 1980s; and Justice Thomas on the Court today. All of these formalists are examples of conservative formalists. Justice Hugo Black, who served on the Court from 1939 to 1973, was an example of a liberal, extreme formalist. There are formalists who follow a subjective approach to interpretation, and thus place great reliance on the specific historical intent of the framers and ratifiers, such as commentator Raoul Berger. In contrast, most formalists, including Justices Scalia and Thomas, follow an objective approach to interpretation and thus place greater reliance on literal text. Finally, as exists with respect to each style of interpretation, a judge who predominately follows one style may have an affinity for another style. As discussed at ß 9.3.2, Chief Justice Hughes and Justice Roberts had a slight affinity for Holmesian interpretation. As discussed at ß 9.4, Chief Justice Burger also had a slight affinity for the Holmesian style; Justice Thomas has a slight affinity for natural law; Justice Black had a slight affinity for instrumentalism.

ß 9 2 Defining the Formalist Style of Constitutional Interpretation
ß 9 2.1 Treatment of Contemporaneous Sources of Interpretation
ß 9 2.1.1 Treatment of Text

On the question of subjective versus objective interpretation of text, most formalist jurists have followed the general temper of their times. Thus, during the 19th century, when Kant's subjective will theory was predominant, as discussed at ß, most formalists focused on the subjective intent of the drafter, whether under the "meeting of the minds" approach to contract law, or "intent of the legislator" approach to statutory interpretation, or "intent of the drafters and ratifiers" approach to constitutional law. As discussed at ß 9.3.4, there are still some contemporary formalist jurists, like Raoul Berger, who support and follow a subjective approach to interpreting the Constitution that, in certain cases, can lead to a different result than is reached under an objective approach.

During the 20th century, the objective approach to interpreting text gained greater prominence. Particularly for formalists, inquiry into the subjective "in-fact" intent of any individual can be a messy proposition. Thus, formalist judges today typically dispense with original subjective intent Page 279 in favor of asking what a text's words mean, since determining that meaning can be done in a more mechanical fashion. The formalist approach today was perhaps best stated by Justice Scalia in 1997, when he noted in A Matter of Interpretation that "[w]e look for a sort of 'objectified' intent - the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris."1 In addition to certainty and predictability, Justice Scalia has given another reason for adopting this objective approach. He has said, "And the reason we adopt this objectified version is, I think, that it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawmaker meant, rather than by what the lawgiver promulgated. . . . It is the law that governs, not the intent of the lawgiver."2

In the context of deciding a case, Justice Scalia phrased this point in 1991 by stating, "We are to read the words of the text as any ordinary Member of Congress would have read them."3 While in most cases this phrasing will yield the same result as the phrasing above, logically there is a difference between interpretation according to how a "reasonable person" would read the law and interpretation according to a "reasonable" or "ordinary Member of Congress." If the focus of interpretation is on the best way to determine subjective congressional intent, the "ordinary Member of Congress" phrasing would be more appropriate. If the focus is on notice to the average citizen, the objective "reasonable person" phrasing would be more appropriate. In most cases, of course, the same result is likely to be achieved under either phrasing. Particularly given formalism's focus on clear, bright- line rules that are capable of formal, mechanical application, the better approach may be to focus on how a "reasonable person" would interpret the text, rather than attempt to delve into how a "reasonable Member of Congress" might have an interpretation different than that of a "reasonable person." The "reasonable person" phrasing is reflected in Justice Scalia's more recent 1997 writing.

On the question of literal meaning versus purpose in interpreting constitutional provisions, all formalist jurists emphasize the literal, plain meaning of the words.4 Formalists are concerned that attempting to determine a provision's purpose, or purposes, is not a clear, mechanical process that can yield unambiguous results. As stated by Professor Schauer, "The language in which a rule is written and the purpose behind that rule can diverge precisely because that purpose is plastic in a way that literal language is not. . . . It is because purpose is not reduced to a concrete set of words that it retains its sensitivity to novel cases, to bizarre applications, and to the complex unfolding of the human experience."5 In contrast, formalists have a preference for clear, bright-line rules. For Page 280 example, in Jerome B. Grubart., Inc. v. Great Lakes Dredge & Dock, Co.,6 Justice Thomas, joined by Justice Scalia, noted, "The test I have proposed would produce much the same result as the Sisson analysis without the need for wasteful litigation over threshold jurisdictional questions [based on the purposes of admiralty jurisdiction]. . . . Sisson . . . is easily replaced with a bright-line rule."

Three variations of the formalist approach have appeared in Anglo-American legal history regarding use of purpose. They are the Literal Rule, the Golden Rule, and the Plain Meaning Rule. Under the Literal Rule, the court should follow a text's literal meaning even if that meaning leads to an absurd result. This literal meaning would be determined from considering the dictionary meaning of the text's words, as supplemented by basic rules of grammar as reflected in traditional grammatical maxims of construction. Thus, as stated in the 1892 English case of Regina v. City of London Court Judge,7 "If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity." Under this approach, only if the text is ambiguous, and thus has no plain meaning, should be court depart from what the text literally requires.

This pure literalness approach has attracted some adherents at various points in Anglo-American legal history. One author reports, "In theory, at least, this approach has attracted the attention of a number of courts, and was particularly popular in England in the Nineteenth Century. One reason for that popularity was the strong belief by the English courts in the primacy of Parliament. Paradoxically, the literal rule also attracted adherents because it limited the scope of legislation. For that reason, literalness was prevalent in [the United States] at the turn of the [20th] century, when judicial hostility toward the legislature reached its peak."8 Despite these observations, the United States Supreme Court never adopted such an extreme approach in practice. Indeed, even concerning lower courts, Judge Learned Hand stated in Usatorre v. The Victoria,9 "One school says that the judge must follow the letter of the law absolutely. I call this the dictionary school. No matter what the result is, he must read the words in their usual meaning and stop where they stop. No judges have ever carried on literally in that spirit, and they would not be long tolerated if they did."

A second version of formalism is the Golden Rule. The Golden Rule differs from the Literal Rule in that under the Golden Rule the plain meaning of a text should not be followed if it leads to an absurd result. Thus, a court should depart from literal text, whether statutory or constitutional text, if the text is ambiguous or the literal meaning would...

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