Intentionalism in Constitutional Opinions
| Author | Glenn A. Phelps,John B. Gates |
| DOI | 10.1177/106591299604900201 |
| Published date | 01 June 1996 |
| Date | 01 June 1996 |
| Subject Matter | Articles |
245
Intentionalism
in
Constitutional
Opinions
JOHN
B.
GATES,
UNIVERSITY
OF
CALIFORNIA,
DAVIS
GLENN
A.
PHELPS,
NORTHERN
ARIZONA
UNIVERSITY
This
study
examines
the
extent
and
ways
in
which
two
ideologically
dis-
parate
justices
of
the
U.S.
Supreme
Court
rely
upon
the
intent
of
the
fram-
ers
of
the
Constitution
in
their
opinions
on
constitutional
questions.
A
content
analysis
of the
complete
opinions
written
by
Justices
Brennan
and
Rehnquist
over
a
ten-year
period
reveals
that
not
only
do
they
not
differ
in
their
relative
use
of
intentionalism
but
they
also
very
rarely
use
original
intent
as
the
controlling
argument
in
their
opinions.
We
examine
as
well
the
justices’
historiography.
Finally,
a
systematic
examination
of
all
opin-
ions
shows
that
the
two
justices
consistently
use
intentionalism
in
support
of
quite
different
ideological
outcomes.
We
discuss
the
quantitative
and
interpretive
findings
in
light
of
debates
over
constitutional
interpretation
and
explanations
of
judicial
decision
making.
The
last
two
decades
witnessed
a
resurgence
of
interest
in
constitutional
theory
including
a
focus
on
the
intent
of
the
framers
as
a
guide
for
constitutional
interpretation.
At
the
core
of
this
concern
is
the
principle
of
neutrality
in
constitutional
litigation,
a
concern
not
lost
on
the
public.
If
history
can
pro-
vide
a
reliable
guide
to
the
intent
of
those
who
crafted
constitutional
lan-
guage,
then
it
may
be
possible
for
judges
to
base
their
decisions
upon
neutral
principles
as
opposed
to
their
personal
predispositions
(e.g.,
Berger
1977;
Bork
1971,
1990;
but
see
Brest
1980).
Critics,
however,
continue
to
question
the
merits,
feasibility,
and
limits
of
intentionalism
as
a
jurisprudential
ap-
proach
or
as
a
meaningful
factor
in
understanding
judicial
behavior
(e.g.,
Harris
1993;
Jaffa
1994;
Levy
1988;
Maltz
1994;
Rakove
1990;
Segal
and
Spaeth
1993).
NOTE:
The
authors
appreciate
the
assistance
of
the
Committee
on
Research
of
the
Davis
Division
of
the
Academic
Senate
of
the
University
of
California
and
the
Organized
Research
Committee
of
Northern
Arizona
University
1
Sixty-nine
(69)
percent
of
the
respondents
to
a
recent
national
survey
did
not
believe
that
Supreme
Court
justices’
political
views
should
influence
their
decisions
(Scheb
and
Lyons
1994:
274).
246
The
analysis
of
the
role
of
intentionalism
in
constitutional
opinions
has
been
limited
exclusively
to
extended
case
examples
(Berger
1977;
Levy
1988;
Segal
and
Spaeth
1993)
or
mere
anecdote.’
If
competing
jurisprudential
ap-
proaches
matter,
there
should
be
systematic
differences
across
the
constitu-
tional
opinions
of
justices
publicly
committed
to
different
interpretive
approaches.
The
justices’
opinions
are
important
public
policies
influencing
lower
courts,
attorneys,
and
governmental
actors
at
all
levels
of
the
federal
system.
These
opinions
are
also
especially
appropriate
sources
for
examining
the
importance
of
intentionalism
in
judicial
decision
making
because
studies
of
the
justices’
votes
fail
to
produce
an
adequate
test
of
the
role
of
this
inter-
pretative
approach
and
judicial
decision
making
(Segal
and
Spaeth
1993:
221).
A
more
systematic
accounting
of
the
use
of
intentionalism
in
constitutional
opinions
is
in
order.
We
examined
more
precisely
the
extent
to which
justices
of
the
U.S.
Su-
preme
Court
who
publicly
advocate
competing
interpretive
approaches
actu-
ally
differ
in
their
reliance
upon
intentionalism.
Using
content
analysis
of
a
ten-year
sample
of
the
constitutional
opinions
by
Justices
William
Rehnquist
and
William
Brennan,
we
found
previously
that
the
justices
do
not
differ
in
their
relative
use
of
intentionalism
in
a
statistical
sense
(Phelps
and
Gates
1991).
Nevertheless,
it
may
be
that
intentionalism
is
more
central
to
Justice
Rehnquist
who
has
advocated
the
need
to
rely
on
this
constitutional
source.
In
order
to
test
the
reliance
on
intentionalism
as
a
central
or
controlling
basis
for
an
opinion,
we
examine
interpretatively
the
role
of
such
arguments
within
the
context
of
the
entire
opinion.
Importantly,
our
systematic
content
analysis
also
allows
us
to
test
precisely
whether
intentionalist
arguments
are
used
by
each
justice
to
support
different
ideological
outcomes.
This
research
focuses
on
two
justices
who
represent
different
substantive
views
of
the
Constitution.
In
public
statements,
each
justice
advocated
diver-
gent
conceptions
of
how
a
justice
should
read
the
Constitution
(Brennan
1985;
Rehnquist
1985).
Moreover,
quantitative
and
interpretative
analysis
of
these
justices
show
consistently
their
different
jurisprudential
and
political
views
on
the
meaning
of
the
Constitution.’
If
there
is
evidence
for
the
proposition
2
Reid
(1988)
examines
intentionalism
or
interpretivism
in
only
one
area
of law,
criminal
justice.
3
Justice
Rehnquist’s
jurisprudence
emerges
as
consistently
conservative
in
quantitative
analysis
(Heck
1980;
Hensley
1993;
Segal
and
Spaeth
1989,
1993)
and
interpretative
approaches
(Brenner
1992;
Davis
1989;
Shapiro
1976;
Savage
1992).
A
similar
consis-
tency
is
found
in
liberal
assessments
of
Justice
Brennan
and
these
are
also
both
quanti-
tative
(Goldman
1987;
Spaeth
and
Teger
1982;
Segal
and
Spaeth
1993)
and
interpretative
(Eisler
1993;
Hopkins
1991;
Michelman
1991;
Stone
1991).
To continue reading
Request your trial