Constitutional Interpretation

Interpretation of the U.S. Constitution in the United States

Constitutional Interpretation

Interpreting the Constitution

The success of the Constitution lies in its flexibility. But it is flexible because it speaks in broad and sometimes murky phrases. What, for example, does “due process” mean? The Constitution does not define the term. If a judge’s salary consists in part of fines he hands out against traffic violators in his court, has due process been violated? (Yes, said the Court in Tumey v. Ohio in 1927, because it is unfair to give a judge a monetary incentive to find people guilty.) The ambiguity of the Constitution means that it cannot be applied automatically, and that its provisions must be subject to judicial interpretation.

For more than two centuries justices, scholars, and people on the street have debated the proper method of interpreting the Constitution. Advocates have sparred over several contrasting approaches: strict, or narrow, versus broad construction (interpretation); conservative versus liberal; interpretivist versus noninterpretivist; and activist versus nonactivist. In general this is a debate between those who believe that the wording of Constitution should be read narrowly and those who argue that in many instances the words themselves provide no guide to the outcome of a case.

These different approaches can lead to different outcomes. The abortion decision Roe v. Wade is an example of a broad reading; strict constructionists find no right to abortion. Decisions upholding the death penalty exemplify strict readings; only a broad reading would render capital punishment unconstitutional.

No single method has found favor. Moreover, these labels are misleading and not always consistent. Although strict constructionists are often politically conservative, they need not be. Justice Hugo L. Black, who served on the Supreme Court from 1937 to 1971, adhered to a strict constructionist approach. He argued that only if a right was mentioned should it be observed. But this view led him to a very broad and liberal interpretation of freedom of speech; he insisted that even obscene works should be permitted. The First Amendment, he declared, means just what it says: The government shall make no law against freedom of speech. By contrast, some judges wish to give the government broad power to curb speech, a conservative position perhaps, but not a strict one. On the other hand, Black dissented in Griswold v. Connecticut, the birth-control case, insisting that no matter how silly the law was, the Constitution contains no right of privacy and the judges ought not invent one – not a liberal position, but a strict one. By contrast, several usually conservative judges discerned a privacy right in the due process clause, interpreting the Constitution liberally and not strictly.

In recent years a somewhat different debate has arisen over whether the Constitution should be interpreted according to the framers’ intent. Those who favor the so-called original intent of the framers argue that the Constitution must still mean what those who wrote it meant in 1787. If the framers intended that the death penalty be used, they argue, then it cannot be unconstitutional.

This approach has several difficulties. First, the historical record is far from clear about what they meant by many constitutional phrases. Second, in many important cases today, it is impossible to know what the framers intended because the modern world was unknown to them. They never conceived of television. How, then, could they have had an intent about whether rules regulating cable television violate the First Amendment? Third, whose intent should we look to? The framers did not agree on all the issues. Indeed, their disagreements led them to write the Constitution in words that have many possible meanings. Moreover, if the key is intent, then perhaps we should look instead at the intent of those who ratified the Constitution, for it was they who chose to put it into operation. But how can anyone determine the single intent of hundreds of people who chanced to come together in state ratifying conventions and did not leave records? Fourth, referring to original intent makes sense only if the framers themselves intended that later generations do so. But there is no evidence that they wished future citizens to do so. In addition, the Constitution does not say how its meaning should be interpreted. Fifth, the framers might have intended for later generations to interpret the constitutional text broadly, in light of the novel problems that would undoubtedly arise in later eras. It is this last approach that has often won. Regardless of theory, there can be no doubt that the meaning of the Constitution often changes with the times. (1)

Religion and Secularism in Constitutional Interpretation and Democratic Debate

United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled “Religion and Secularism in Constitutional Interpretation and Democratic Debate”, although the first amendment forbids any law “respecting an establishment of religion, or prohibiting the free exercise thereof,” the term “religion” is not defined. In its first efforts to define the term, the Supreme (read more about Constitutional law entries here).

Contents of Constitutional Interpretation

Based on American Constitutional Interpretation (4th Edition, Foundation Press, 2008), by Walter F. Murphy, James E. Fleming, Sotirios A. Barber, and Stephen Macedo.

Problems of Inclusion in the Constitution, Continuity and Change

Rochin v. California (1952)
Marsh v. Chambers (1983)
Missouri v. Holland (1920)

Who May Authoritatively Interpret the Constitution for the Federal System?

Martin v. Hunter’s Lessee (1816)
Abelman v. Booth (1858)

How to Interpret the Constitution. Structuralism. Sharing Power at the National Level

Mississippi v. Johnson (1866)
Hamdi v. Rumsfeld (Hamdi I) (4th Cir. 2003)
Crandall v. Nevada (1867)
Texas v. White (1868)
National League of Cities v. Usery (1976)
Gonzales v. Raich (2005)

Keeping Political Processes Open. Freedom of Political Communication

Richmond Newspapers, Inc. v. Virginia (1980)
Advocacy or Incitement of Unlawful Action
Yates v. United States (1957)
Haig v. Agee (1981)
Gooding v. Wilson (1972)
Watts v. United States (1969)
Hustler Magazine, Inc. v. Falwell (1988)
Symbolic Expression
Tinker v. Des Moines School District (1969)
Right to Reputation versus Freedom of Communication
Time, Inc. v. Firestone (1976)
Prior Restraint of Expression
Near v. Minnesota (1931)
The Pentagon Papers Case (1971)

Political Participation and Process

Rogers v. Lodge (1982)
The Right to Associate
New York ex rel. Bryant v. Zimmerman (1928)
Barenblatt v. United States (1959)
NAACP v. Button (1963)
Scales v. United States (1961)
Aptheker v. Secretary of State (1964)
First National Bank of Boston v. Bellotti (1978)
Austin v. Michigan Chamber of Commerce (1990)
Brown v. Hartlage (1983)
Anderson v. Celebrezze (1983)
Miami Herald Publishing Co. v. Tornillo (1974)
The Right to Run for Public Office
Civil Service Commission v. National Association of Letter Carriers (1973)
The Right to Lobby Governmental Officials
United States v. Harriss (1954)

Equal Protection, Racially Discriminatory and Gender

New Orleans v. Dukes (1976)
Hernandez v. Texas (1954)
Washington v. Davis (1976)
Regents of University of California v. Bakke (1978)
Fullilove v. Klutznick (1980)
Mississippi University for Women v. Hogan (1982)

The Right to Property

Stone v. Mississippi (1880)
Hawaii Housing Authority v. Midkiff (1984)

Autonomy and the Fundamental Right to Religious Freedom

Cantwell v. Connecticut (1940)
Prince v. Massachusetts (1944)
Braunfeld v. Brown (1961)
Gillette v. United States; Negre v. Larsen (1971)
Statement by the Administrative Board of the United States Catholic Conference (1980)
Johnson v. Robison (1974)
Bob Jones University v. United States (1983)

Individual Autonomy: Privacy, Personhood, and Personal Liberty

The Right to Citizenship: The Right to Have Rights
Afroyim v. Rusk (1967)
The Right to Physical Freedom
In Re Winship (1970)
The Right to Bodily Integrity
Rochin v. California (1952)
Akron v. Akron Center for Reproductive Health (1983)
Bell v. Wolfish (1979)
The Right to Sexual Choice
Doe v. Commonwealth’s Attorney (E.D. Va. 1975)

The Right to Reputation

Paul v. Davis (1976)

Constitutional Interpretation and Emergency Powers

United States v. United States District Court (1972)


Notes and References

  1. Encarta Online Encyclopedia

See Also

Constitutional Interpretation, Radical Populist
Postmodernism and Constitutional Interpretation
Judicial Interpretation
Bill Of Rights Interpretation
Statutory Interpretation

Some Constitutional Law Popular Entries

Further Reading

  • Ackerman, Bruce. “Discovering the Constitution,” 93 Yale L.J. 1013 (1984).
  • Ackerman, Bruce. “Liberating Abstraction,” 59 U.Chi.L.Rev. 317 (1992).
  • Ackerman, Bruce. We the People: Volume 1, Foundations (Cambridge: Harvard University Press, 1991).
  • Ackerman, Bruce. We the People: Volume 2, Transformations (Cambridge: Harvard University Press, 1998).
  • Arkes, Hadley. Beyond the Constitution (Princeton: Princeton University Press, 1990).
  • Barber, Sotirios A. On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984).
  • Barber, Sotirios A. The Constitution of Judicial Power (Baltimore: Johns Hopkins University Press, 1993).
  • Barber, Sotirios A. Welfare and the Constitution (Princeton: Princeton University Press, 2003).
  • Barber, Sotirios A. and Robert P. George, eds. Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (Princeton: Princeton University Press, 2001).
  • Barber, Sotirios A. and James E. Fleming. Constitutional Interpretation: The Basic Questions (New York: Oxford University Press, 2007).
  • Berns, Walter. Taking the Constitution Seriously (New York: Simon & Schuster, 1987).
  • Bobbitt, Philip. Constitutional Interpretation (Cambridge: Basil Blackwell, 1991).
  • Bork, Robert H. The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990).
  • Brigham, John. Constitutional Language (Westport, CT: Greenwood Press, 1978).
  • Chemerinsky, Erwin. Interpreting the Constitution (New York: Praeger, 1987).
  • Corwin, Edward S. Liberty Against Government (Baton Rouge: Louisiana State University Press, 1948).
  • Dahl, Robert A. “Decision–Making in a Democracy: The Supreme Court as a National Policy– Maker,” 6 Jo. of Pub.L. 279 (1957).
  • Dworkin, Ronald. Taking Rights Seriously (Cambridge: Harvard University Press, 1977), ch. 5.
  • Dworkin, Ronald. Law’s Empire (Cambridge: Harvard University Press, 1986).
  • Dworkin, Ronald. Life’s Dominion (New York: Knopf, 1993).
  • Dworkin, Ronald. Freedom’s Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press, 1996).
  • Ely, John Hart. Democracy and Distrust (Cambridge: Harvard University Press, 1980).
  • Fleming, James E. Securing Constitutional Democracy: The Case of Autonomy (Chicago: University of Chicago Press, 2006).
  • Garvey, John H., T. Alexander Aleinikoff, and Daniel A. Farber, eds. Modern Constitutional Theory: A Reader (5th ed.; St. Paul: West, 2004).
  • Gerhardt, Michael J., Stephen M. Griffin, and Thomas D. Rowe, Jr., eds. Constitutional Theory: Arguments and Perspectives (3d ed.; Newark, NJ: LexisNexis, 2007).
  • Graber, Mark A. “Why Interpret? Political Justification and American Constitutionalism,” 56 Rev. of Pols. 415 (1994).
  • Grey, Thomas. “Do We Have an Unwritten Constitution?” 27 Stan.L.Rev. 703 (1975).
  • Grey, Thomas. “The Constitution as Scripture,” 37 Stan.L.Rev. 1 (1984).
  • Harris, William F. II. The Interpretable Constitution. (Baltimore: Johns Hopkins University Press, 1993).
  • Hartog, Hendrik. “The Constitution of Aspiration and ‘The Rights that Belong to Us All,’ ” 74 Jo.Am.Hist. 1013 (1987).
  • Kahn, Ronald. The Supreme Court & Constitutional Theory, 1953–1993 (Lawrence: University Press of Kansas, 1994).
  • Kramer, Larry. The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).
  • Levinson, Sanford. Constitutional Faith (Princeton: Princeton University Press, 1988).
  • Levinson, Sanford. “Some Reflections on the Posnerian Constitution,” 56 Geo.Wash.U.L.Rev. 39 (1987).
  • Loss, Richard, ed. Corwin on the Constitution (Ithaca: Cornell University Press, 1981–88), 3 vols.
  • Mason, Alpheus Thomas. The Supreme Court: Palladium of Freedom (Ann Arbor: University of Michigan Press, 1962).
  • Monaghan, Henry P. “Foreword: Constitutional Common Law,” 89 Harv.L.Rev. 1 (1975).
  • Moore, Wayne D. Constitutional Rights and Powers of the People (Princeton: Princeton University Press, 1996).
  • Murphy, Walter F. “The Art of Constitutional Interpretation,” in M. Judd Harmon, ed., Essays on the Constitution of the United States (Port Washington, NY: Kennikat Press, 1978).
  • Murphy, Walter F. “Constitutional Interpretation: The Art of the Historian, Magician, or Statesman?” 87 Yale L.J. 1752 (1978).
  • Murphy, Walter F. “An Ordering of Constitutional Values,” 53 So.Cal.L.Rev. 703 (1980).
  • Murphy, Walter F. Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007).
  • Powell, Thomas Reed. “The Logic and Rhetoric of Constitutional Law,” 15 Jo. of Phil., Psych., and Sci. Method 654 (1918); reprinted in Robert G. McCloskey, ed., Essays in American Constitutional Law (New York: Knopf, 1957).
  • Powell, Thomas Reed. Vagaries and Varieties in Constitutional Interpretation (New York: Columbia University Press, 1956).
  • Posner, Richard A. “The Constitution as an Economic Document,” 56 Geo.Wash.U.L.Rev. 4 (1987).
  • Sager, Lawrence G. Justice in Plain Clothes: A Theory of American Constitutional Practice (New Haven: Yale University Press, 2004).
  • Schauer, Frederick. “An Essay on Constitutional Language,” 29 UCLA L.Rev. 797 (1982).
  • Schauer, Frederick. Playing by the Rules (Oxford: Clarendon Press, 1990).
  • Strauss, David A. “Common Law Constitutional Interpretation,” 63 U. Chi. L. Rev. 877 (1996).
  • Sunstein, Cass R. The Partial Constitution (Cambridge: Harvard University Press, 1993).
  • Tribe, Laurence H. American Constitutional Law (2d ed.; Mineola, NY: Foundation Press, 1988).
  • Tribe, Laurence H. American Constitutional Law, Volume One (3d ed.; New York: Foundation Press, 2000).
  • Tribe, Laurence H. and Michael C. Dorf. On Reading the Constitution (Cambridge: Harvard University Press, 1991).
  • Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999).
  • Whittington, Keith E. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999).
  • Whittington, Keith E. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007).

Constitutional Interpretation: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Constitutional Interpretation. This part provides references, in relation to Constitutional Interpretation, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Constitutional Interpretation by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Constitutional Interpretation and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Constitutional Interpretation or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Constitutional Interpretation and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Constitutional Interpretation. Finding these decisions can be challenging. In many cases, researchers about Constitutional Interpretation should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Constitutional Interpretation when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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