Material Sources of Constitutional Interpretation

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

Page 99

ß 5 1 Introduction to the Material Sources of Constitutional Interpretation

As noted at ß 1.2.1, under Aristotle's categorization of sources, material sources are the building blocks of any situation or thing. Thus, for Aristotle, silver is the material source out of which a silver bowl is made. With respect to interpretation, the building blocks are the sources of meaning that the interpreter must consider during the act of interpretation. Focusing on constitutional interpretation, any interpreter must decide, among other things, how much weight to give arguments about the plain meaning of the Constitution's text; the text's purpose or spirit; the context of that text, including verbal or policy maxims of construction, related provisions in the Constitution or other related documents, like the earlier enacted Articles of Confederation, and the structure of government contemplated by the Constitution, including issues of federalism and separation of powers; historical evidence concerning the intent of the framers and ratifiers of the Constitution; legislative, executive, and social practice under the Constitution; judicial precedent interpreting the Constitution; and prudential arguments concerning the consequences of a particular judicial decision, both from the perspective of text, context, history, practice, and precedent, and whether that decision would advance a particular background principle of justice or social policy that the judge believes is embedded in the Constitution or constitutional doctrine, more succinctly phrased as "embedded in the law," or perhaps a principle of justice or social policy that is "not so embedded" in the Constitution or existing constitutional doctrine. Page 100

These sources can be organized under two broad headings: contemporaneous sources of meaning and subsequent considerations. Contemporaneous sources are those sources that existed at the time a constitutional provision was ratified. These include the text of the Constitution; the context of that text, including verbal and policy maxims of construction, related provisions in the Constitution or other related documents, and the structure of government contemplated by the Constitution; and the history surrounding the provision's drafting and ratification. The term "contemporaneous sources" conforms to usage by Justice Powell in Garcia v. San Antonio Metropolitan Transit Authority,2where he wrote, "As contemporaneous writings and the debates at the ratifying conventions make clear, the States' ratification of the Constitution was predicated on this understanding . . . ."

Subsequent considerations involve matters that occur after the constitutional provision is ratified. These include the sub-categories of (a) subsequent events, which involve legislative, executive, and social practice under the Constitution, and judicial precedent interpreting the Constitution, and (b) prudential considerations, which involve judicial speculation concerning the consequences of any particular judicial construction, including arguments of justice or sound social policy.

These sources can be organized by resort to whether they involve relatively specific and limited interpretive tasks, or resort to more general kinds of reasoning. This difference between specific interpretive tasks and general kinds of reasoning will be explored during the rest of this Chapter. Preliminarily, however, Table 5.1 may help make clearer the discussion in the rest of this Chapter.

Table 5.1 Sources of Constitutional Meaning


This summary of sources of constitutional meaning owes its genesis to University of Texas School of Law Professor Philip Bobbitt and his book, Constitutional Fate.3 In that book, Professor Bobbitt described six main kinds of constitutional arguments: textual, structural, historical, doctrinal, prudential, and ethical. The first three of these arguments - textual, structural, and historical - form the main parts of the three sub-categories of meaning grouped under the heading contemporaneous sources of meaning: text; context, including arguments of structure; and history.4 Professor Bobbitt's fourth category, doctrinal argument, is the sub-category of subsequent events that deals with judicial precedents, that is, the doctrines developed by the Court in construing the Constitution.5 The other sub-category of subsequent events - subsequent legislative, executive, or social practice - is not specifically identified as a separate source by Professor Bobbitt in Constitutional Fate. However, he did touch upon aspects of legislative and executive practice in a later book, Constitutional Interpretation.6 Professor Bobbitt's fifth category, prudential argument, is reflected in the category of prudential considerations. As discussed at ß 5.4.2, Professor Bobbitt's discussion of prudential considerations focused mostly on considerations of consequences in light of text, context, history, practice, and precedent, and specifically structural arguments about the proper role of the judiciary, particularly the limited role mentioned in Ashwander v. Tennessee Valley Authority and favored by Holmesian Justices such as Justices Holmes, Brandeis, and Frankfurter, and commentators such as Professor Alexander Bickel.7 As indicated in Table 5.1, these considerations are part of prudential considerations analysis. As discussed at ß 5.4.1, additional prudential considerations focus on background principles of justice or social policy, whether embedded in the law or not so embedded.

Discussion of Professor Bobbitt's sixth category, ethical argument, is a bit more complicated. As Professor Bobbitt's colleague at the University of Texas School of Law, Professor Sanford Levinson, has noted, "[T]here are, within American law, cases illustrating a distinctive seventh 'modality' of 'natural law' or 'justice.' This differs quite radically from 'ethos' [or ethical argumentation], which I teach as a modality calling upon lawyers to exercise a certain kind of cultural-anthropological skill in discerning the underlying value commitments of a given social order."8 Upon this understanding, Bobbitt's ethical argument is reflected in part as the sub-category of history dealing with "general historical intent," which elaborates the general concept (or "ethos") behind a constitutional provision, rather than the specific examples held by the framers and ratifiers about a provision.9 Professor Bobbitt indicated, however, that ethical argumentation also involves Page 102 moving beyond "contemporaneous" historical evidence to consider background principles of justice or social policy embedded in the law.10 Argumentation based on such background principles is thus part of Bobbitt's ethical argumentation as well. Professor Levinson's seventh modality of "justice," which he defined as independent of any particular society's "ethos," is reflected in the sub-category of prudential considerations dealing with the consequences of an interpretation from the perspective of justice or social policy that is independent of, and thus not necessarily embedded in, the law.

Professor Wilson Huhn has also developed a taxonomy of arguments used in legal reasoning, which he stated can apply to common-law, statutory interpretation, or constitutional law analysis. His list involves five kinds of arguments: text, intent, precedent, tradition, and policy analysis. Professor Huhn's category of "text" includes both what are called here arguments of "text" and "context."11For the sake of clarity, it seems better to separate "text" and "context" into two different categories, rather than treating them as different parts of the same category. For instance, under some versions of a plain meaning rule for statutory construction, or some versions of the Parol Evidence Rule in contract law, one cannot consider aspects of "context" but only aspects of "text" alone.12 Separating "text" and "context" into two different categories is more consistent with this doctrinal structure.

Professor Huhn's final four categories track the remaining four categories used in this book, with only linguistic variations: intent = history; precedent = precedent; tradition = practice; and policy analysis = prudential considerations.13 The terms history, practice, and prudential considerations are used in this book principally because they are used more often in constitutional...

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