Approaches to Constitutional Interpretation

Thomas Reed Powell was known for his advice to his first-year students at Harvard Law School, to not read the Constitution because it would only confuse them. Such is the dilemma of texts like the constitution. Their provisions are often ambiguous, vague, contradictory, insufficiently explicit, or even silent as to matters they address. Judges being tasked with the duty of employing such texts to aid in the resolution of disputes before them, resolve these problems through ‘interpretation’, which itself is controversial. There are many methods of interpretation and no one method commands universal assent as judges rarely commit to one, to the exclusion of others. The following interpretive techniques are commonly employed in interpretation of the constitution.

Textualism

The language of the legal text is supreme. Antonin Scalia articulated this as “The text is the law and it is the text that must be observed”. Textualism is based on the claim that constitutional interpretation must begin with the written word.[1] Textualism is sometimes referred as the ‘‘plain words’’ approach and its advocates claim that the words of the Constitution should be read for their ordinary meaning and applied accordingly. Justice Joseph Story wrote in his celebrated Commentaries on the Constitution, “It is obvious that there can be no security to the people in any constitution of government if they are not to judge of it by the fair meaning of the words of the text.”.

The textual approach, however, is also profoundly limited. The most troublesome is that in a great many places the words of the text are anything but clear. Indeed, it is this lack of clarity that necessitates interpretation in the first place.

Originalism

Some judges and scholars have argued that the aim of constitutional interpretation is to discover what the Founders ‘‘intended’’ the provision at hand to mean. Once discovered, intent governs the case. When we seek the meaning of any text we often begin by asking, “what did the author mean?”. In Marbury v. Madison (1803) and other opinions, Chief Justice Marshall stressed the need for judicial fidelity to the original understanding of the Constitution. Despite its obvious attractions, appeal to the Founders’ intent as a method of interpretation is subject to a great many reservations. As a practical matter, we have very little evidence about what the Founders actually intended.   Intentions of framers are various, sometimes transient, and often impossible to determine.[2] One way around some of these problems is to focus less on the Founders’ intent and instead to search for the ‘‘original meaning’’ of the words of the Constitution as they were used at the time of their drafting. According to Justice Scalia, original meaning is to be found in the historical practices and understandings of the time, not the views of the document’s drafters. Aids to interpretation would include temporally relevant dictionaries and etymological sources.

Stare Decisis

Constitutional or legal provision once interpreted, explained and elucidated should not be lightly revised[3]. Stare decisis—to stand by what has already been decided—is a doctrine built on the importance of precedent. A precedent is simply a case that has already been decided. Stare decisis, then, refers to a method of interpretation that decides current cases by looking at how similar cases were decided in the past. To put it more simply, Stare decisis asserts that a court must follow earlier judicial decisions when the same points arise again in litigation. The principle of stare decisis can be divided into two components-(i) The first is the rule that a decision made by a superior court, is binding precedent that the court itself and all its inferior courts are obligated to follow, and (ii) The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so. Critics have argued that stare decisis itself may be unconstitutional if it requires the Court to adhere to an erroneous reading of the Constitution. “If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution.”. The theory of stare decisis tends to improperly elevate judicial doctrine over the Constitution itself.” Justice Frankfurter argued, that ‘‘the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.’’ For this reason, some justices have argued stare decisis should carry less weight in constitutional interpretation, therefore, it may be more important to get the case ‘‘right’’ than to follow a wrongly decided precedent to maintain consistency.

Prudentialism

Prudential arguments seem less of an interpretive enterprise than strategies for avoiding a decision in politically sensitive cases or balancing interests in particularly complicated ones. Prudentialism is often identified with the work of Alexander Bickel who advised the Court to creatively exploit jurisdictional doctrines such as ripeness, standing, and mootness, together with the judicial application of the political question doctrine. It discourages judges from setting broad rules for possible future cases and advises courts to play a limited role by reconciling judicial review with democracy.

Chief Justice Earl Warren wrote in Flast v. Cohen (1968) that ‘‘the business of the federal courts is limited to questions presented in an adversary context’’ and ‘‘to assure that the federal courts will not intrude into areas committed to other branches of government’’.

Structuralism

One of the principles of the constitutional order is the separation of powers or, to put it more appropriately, the existence of separate institutions sharing power. The constitutional document does not contain the phrase ‘‘separation of powers,’’ but the very structure of the text—and the ‘structuralism’ believes that the meaning of individual constitutional provisions can only be discerned by a thorough examination of the entire Constitution.  Structuralists argue that we should not focus on the meaning of specific, isolated clauses, but rather on the location of the clause and its interaction with the whole text. In a somewhat broader sense, structuralism seeks unity and coherence not only in the text, but in the larger political order the text signifies. Lawrence Tribe furthers this argument by noting that a complete reading of the Constitution is not only necessary for understanding each component, but also gives rise to an ‘‘invisible constitution’’ as well. The invisible constitution supports the constitutional text and includes several basic principles such as the assertion that we have a ‘‘government of laws, not men’’. It is worth noting that in America and India judicial review has been justified on structural grounds.

Philosophical

Our political system incorporates elements of both democratic and constitutional theory. The fundamental principles, such as respect for liberty, the need for limited government, freedom of speech and religious freedom, rest upon larger philosophical commitments and understandings about the relationship of the individual to the community, and between state and society. It should be no surprise then that many justices, particularly in India, interpret the Constitution in light of these philosophical understandings, or through the lenses of democratic and constitutional theory. In 2017 PLD Lah. 1, it was held that ‘fundamental rights must be progressively and purposively interpreted to advance frontiers of freedom, individual autonomy and free choice, and such vibrancy and vitality are the hallmark of a living constitution in a democracy’. One might wonder, whether any kind of constitutional interpretation is really possible without making reference—either knowingly or unknowingly—to such things. However, critics charge that judges are not and should not be philosophers. Part of the complaint here is a simple, straightforward recognition that judges lack the kind of expertise required to deal with sophisticated questions of moral or political philosophy. Similarly, they argue that reducing constitutional interpretation to a question of philosophy is to make the Constitution even more remote and less accessible to ordinary citizens.

Aspirational

A related method of interpretation is sometimes called the ‘‘aspirational’’ approach. Aspirationalism presents attractive interpretive possibilities. The idea, traceable to Aristotle, that a constitution defines the principles of justice toward which a people aspire, is the basis for claiming that aspirational considerations should weigh heavily in determining constitutional policies and meanings. This method of interpretation, sometimes promoted by Justice Brennan, argues that the Constitution is a vision of a state of affairs we hope to achieve, or that we aspire to. Individual provisions must be read in light of those aspirations and interpreted in ways that help us to realize those aspirations. Critics like Justices Rehnquist and Scalia, for example, have argued that judicial appeals to ‘‘aspirations’’ are simply ways for judges to ‘‘short-circuit’’ majoritarian government.

Conclusions

Having thus identified a few principles for interpretation of the Constitution, what can be deduced is that no single principle can beneficially serve constitutional adjudication. Neither the “originalists’ approach” nor “living document’s approach” nor “prudentialism” singly or collectively are enough for a sound constitutional adjudication. On the basis of principles elaborated above, an integrated approach in interpretation of a Constitution is required in the light of social, economic and political necessities of a particular period in which the court is called upon to interpret.

[1] Justice Marshall in Sturges v. Crowninshield (1819).

[2] Dred Scott v Sandford (1857) is one of the examples.

[3] 2016 PLD 421 Supreme Court.