10/31/2016 03:25 pm ET Updated Nov 01, 2017

Fourteen Ways To Interpret The Constitution

When Supreme Court Justices interpret the Constitution, they have a stated or unstated framework for analyzing the text. This comment briefly lists, in no particular order, fourteen possible approaches with a very brief and incomplete statement of what advocates and critics generally have to say about each. Not all commentators utilize identical terminology and categories, so others may approach this topic differently. Categories may overlap somewhat and inconsistencies may appear. When deciding a case, the Justices must consider the relative weight to give to a multitude of factors beyond the scope of this brief comment. Careful advocates before the Supreme Court know each Justice's style and general approach to Constitutional Law. The reader of this comment may choose the approach that she or he thinks best.

Original Intent (Original History)

This reading argues that the framers carefully chose their words to create broad neutral principles. Proponents of this view argue that it produces consistency and stability and prevents important rights from being ignored. Critics argue that the framers disagreed among themselves, that the historical record is incomplete, and that asserting "original intent" may be used as a cover for advocating a particular ideology. An example of Original Intent reasoning is found in Katz v. U.S. (1967) when the majority opinion written by Justice Stewart held that the Fourth Amendment protects legitimate expectations of privacy (in this case a telephone booth conversation) and should not be read literally to protect only against physical intrusions into certain spaces. Justice Black, dissenting, believed that the Fourth Amendment related to the seizure of things and was not intended to protect personal privacy.

Textualism (Literalism, or Plain Meaning)

Only look to the literal words of the text and consider their meaning in a manner that does not produce an absurd result. Advocates assert that this standard results in value-free decisions and avoids the personal predilections of judges. Critics argue that words may be vague, textualism produces inconsistencies, and additionally it presents a dated and static non-living viewpoint. Coy v. Iowa (1988) held that a screen between a child witness and a criminal defendant violated the Sixth Amendment right of confrontation in a majority opinion written by Justice Scalia that discussed the plain meaning of "confront."

Strict Constructionism

This approach is like Textualism but once a clear meaning has been decided, no further analysis is required. It implies a narrow reading. Bridges v. California (1941) 5:4 overturned a contempt of court conviction for an editorial with Justice Black, writing for the majority, stating: "the First Amendment does not speak equivocally. It prohibits any law "abridging the freedom of speech, or of the press." Advocates assert that the Constitution must be read as written and amendments alone should modify the document. Critics argue that the approach is too rigid, ignores precedent, and also the values that inspired the statements.

Precedent (Stare Decisis)

The Supreme Court should look to its past decisions in order to decide a present case. Advocates find that this approach produces a clear-cut guide, makes interpretation predictable, and prevents the Court from contradicting itself. Critics argue that many precedents are contradictory and support for any outcome is possible. Additionally, an incorrect precedent such as "separate but equal" in Plessy v. Ferguson (1896) was correctly overturned by Brown v. Board of Education (1954). In Rush Prudential HMO v. Moran (2002) Justice Souter, for the majority, wrote of "following our precedent" set in a 1982 decision. This case upheld an Illinois state law allowing independent review of health care benefit denials.

Logical (Mathematical)

This utilizes formal reasoning to interpret the text, typically in a syllogism that proceeds from major premise to minor premise to a conclusion. Advocates claim a kind of scientific certainty. Critics assert that minor premises are often faulty, leading to erroneous conclusions. (If it is raining, it is cloudy. It is cloudy. Therefore, it is raining.) Marbury v. Madison (1803) written by Justice Marshall, is the most famous decision to use logical reasoning in creating the power for the U.S. Supreme Court to declare legislation unconstitutional: "If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."


Judges hear cases to provide a forum to make broad policy pronouncements that enhance the prestige and power of the court. Any lengthy opinion that covers a broad range of issues is using this approach. Baker v. Carr (1962), written by Justice Brennan, involved the specific issue of judicial review of legislative redistricting but also engaged in a discussion of what constitutes a political question solely for the legislature to decide, who may sue (standing), and justiciability (what is a controversy for courts to decide). Critics assert that a doctrinal approach goes beyond the role of the judiciary to decide cases and controversies and introduces politics into the judiciary.

Living Document (Aspirational)

This reading views the Constitution as a contemporary text and is more concerned with providing a specific remedy than creating a general rule. Usually this form of interpretation balances the power of government against the rights of the individual. Cases are perceived as unique. Advocates assert developing social standards of justice and rights, as well as new technologies, require this approach - how can we know what the founders would think concerning regulating electrical generating plants? Critics state that this approach makes decisions based upon the individual whims of a few unelected individuals, not accountable to the electorate, and provides an excuse for ignoring or distorting the plain text. Roe v. Wade (1973) striking down state legislation prohibiting abortion by applying an implied right of privacy "in the penumbras of the Bill of Rights" (applied in prior decisions) is a classic example of this approach.


Structuralism looks to the overall structure of the Constitution, the internal dynamics between branches of government such as the separation of powers, the presumptive relationship of the federal and state governments, and the presumed role of the judiciary within the Constitution. Youngstown Sheet & Tube Co. v. Sawyer (1952) found that the President exceeded his executive powers in ordering the seizure of steel mills. Advocates of structuralism says it follows the text of the constitution while providing flexibility and critics assert that it unnecessarily weakens federal power by weakening the Supremacy Clause (Article VI, Clause 2).

Constitution in Exile

The phrase "constitution in exile" comes from a 1995 article. This view would overturn Supreme Court decisions after 1937 that expanded the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3 of the U.S. Constitution, giving Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes") to allow extensive federal regulation of the economy and U.S. society. Followers of this view are loosely identified with the original intent view. U.S. Supreme Court decisions such as U.S. v. Lopez (1995) stating Congress can't ban guns near public schools under Commerce Clause power, only the states can act, seemed to signal a willingness to somewhat limit the application of the Commerce Clause as a basis for legislation. Critics of this view argue that it would socially "turn back the clock" and allow business to act without restraint. The phrase "Constitution in exile" has been used as shorthand by the political spectrum to mean restraining the powers of the judicial branch of the federal government.


A famous and controversial 1913 book, "An Economic Interpretation of the Constitution of the United States" by historian Charles Beard, asserted that the structure of the Constitution reflected the personal financial interests of the writers. Critics of Beard assert that the Constitution was written for reasons of unity and security. A general economic approach today looks at the practical impact on economic activity that a decision might produce. A majority in Lochner v. New York (1905) found a "freedom of contract" concept in the due process clause of the Fourteenth Amendment ("nor shall any state deprive any person of life, liberty, or property, without due process of law") and struck down a New York law limiting bakers to a sixty-hour work week. Critics, including the dissenting Justices in the original Lochner decision, state that the Constitution does not embody a particular economic theory, be it laissez-faire or paternalism.


An ethical approach embodies concepts of justice and fairness and frequently is concerned with individual rights. The Warren Court when Earl Warren was Chief Justice (1953-1969) produced numerous decisions embodying this idea. Critics of this approach assert that it ignores the role of the legislative and executive branches in creating public policy and becomes a thin veil for virtually dictatorial power over the legal system by an unelected judiciary.


Activist refers to judicial decisions that are more like legislation in creating public policy. All sides of the political spectrum point to disliked examples of perceived judicial activism. Brown v. Board of Education (1954)) and Roe v. Wade (1973) created fundamental changes in social policy that are argued to be legislative in nature. Activism is somewhat in the eye of the beholder but the fundamental criticism is that the Court is acting like an unelected nine-member super legislature.


Balancing occurs when Justices weight competing interests such as privacy versus public safety or freedom of speech versus consumer deception. Advocates state that this is a realistic approach to contemporary realities and concerns. Critics assert that the text of the Constitution is silent concerning when and how any balancing is to be accomplished. Furthermore, say critics, this approach gives undue weight to public opinion and changing social norms. Thus, there is First Amendment language specifically allowing the free exercise of religion in opposition to the weight of public policy in social and political history condemning polygamy. Reynolds v. U.S. (1878) upheld criminalizing LDS polygamy stating that the First Amendment allowed legislation prohibiting certain religious "actions," [such as "human sacrifices"], while protecting religious "opinions" and that, furthermore, English history only permitted single marriages with polygamy being "odious." "Professed doctrines of religious belief cannot be superior to the law of the land," said the Reynolds decision.


This approach advises a court to exercise judicial restraint, serve a limited role, only decide the case before it, and not make broad general rules for future cases. Advocates state the role of the court is limited to only deciding actual cases and controversies. Critics say that business and society need broader generally applicable standards to guide their conduct that uniquely courts can provide. An example of Prudentialism is language such as: "Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause" (Bowers v. Hardwick, 1986, that was overturned in 2003 by Lawrence v. Texas applying liberty and privacy rights).

Clearly this brief and incomplete educational overview is not intended to provide legal advice. Always consult an experienced attorney in specific Constitutional Law situations.