Principles of Constitutional
Constitutional interpretation, or constitutional construction,
the term more often used by the Founders, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. Some scholars distinguish between "interpretation" — assigning meanings based on the meanings in other usages of the terms by those the writers and their readers had probably read, and "construction" — inferring the meaning from a broader set of evidence, such as the structure of the complete document from which one can discern the function of various parts, discussion by the drafters or ratifiers during debate leading to adoption ("legislative history"), the background of controversies in which the terms were used that indicate the concerns and expectations of the drafters and ratifiers, alternative wordings and their meanings accepted or rejected at different points in development, and indications of meanings that can be inferred from what is not said, among other methods of analysis.
There is also a question of whether the meanings should be taken from the public meanings shared among the literate populace, the private meanings used among the drafters and ratifiers that might not have been widely shared, or the public legal meanings of terms that were best known by more advanced legal scholars of the time. Most of the U.S. Constitution appears to have been written to be understood by ordinary people of that era, although people then were much more literate in the law than people are now. However, many of its words and phrases are fairly deep legal terms that were only well understood by a few of the legally educated Founders, even though the general population probably had a rudimentary understanding of them.
There is a problem with the "original public meaning" formulation, because while the meanings of constitutional terms were "public" in the sense that they were not "private" or "secret", they were not necessarily familiar to ordinary people of the era. More accurate would be "legally educated and still learning public meaning", because many of the Founders themselves used terms that they had to research to find the meanings of. An example of this can be seen in the comments by Dickenson in the Federal Convention Aug. 29, 1787, about ex post facto only applying to criminal cases, after researching the topic in Blackstone's Commentaries. So since we can presume the Founders mostly agreed on the writers they considered authoritative on legal usages, we can reasonably refer to the writings of those other writers to find the meanings the Founders intended even if the Founders themselves had not yet done the research to fully master the concepts.
For constitutional terms the denotata are not empirical objects so much as ideas, that is, mental models, that do not, for the most part, have the advantage of some formal scientific models of being representable in mathematical or computer formalisms that we can examine externally. In particular, they are ideas that existed in the minds of persons long dead, so we have to develop mental models of their mental models ("theory of mind") based on the things they read and wrote. That can be done. The verification comes with being able to predict what one of them will say in a writing one hasn't read yet. Becoming adept at doing so can reassure one that one has "gotten into their heads". But that is not something one can demonstrate to others.
This leads to the admonition that the English used in the Constitution and other legal documents of the 18th century should be read as a foreign language, putting aside today's meanings of what seem to be the same words we use today, and attempting to decode the meanings from various clues we can find. This is not only wise for 18th century English, but for almost any communications, even among people who communicate with one another daily, because no two people mean precisely the same thing by the same words on every occasion. When both speaker and listener are alive they are able to interrogate one another to arrive at a common meaning, but when the author is dead we have to find evidence in other things he or his correspondents wrote.
Constitutional controversies are about whether an
official act is consistent with, and authorized by, a constitution or
constitutional statute or court decision. Since a constitution is a law, and
the supreme law within its domain, and authorizes statutes and other official
acts which have a textual expression, the principles of constitutional
interpretation are essentially the same as the principles of statutory or
Most legal scholars recognize seven main methods of judicial decisionmaking:
textual, historical, functional, doctrinal, prudential, equitable, and
natural, although they may differ on what each includes, and there is
some overlap among them.
Textual. Decision based on the actual words of the
written law, if the meaning of the words is unambiguous. Since a law is a
command, then it must mean what it meant to the lawgiver, and if the meaning of
the words used in it have changed since it was issued, then textual analysis
must be of the words as understood by the lawgiver, which for a constitution
would be the understanding of the ratifying convention or, if that is unclear,
of the drafters. Some Latin maxims: A verbis legis non est recedendum.
From the words of the law there is not any departure. 5 Coke 118. Noscitur
ą sociis. Meaning of words may be ascertained by associated words. 3
Historical. Decision based less on the actual words than
on the understanding revealed by analysis of the history of the drafting and
ratification of the law, for constitutions and statutes, sometimes called its
legislative history, and for judicial edicts, the case history. A textual
analysis for words whose meanings have changed therefore overlaps historical
analysis. It arises out of such Latin maxims as Animus hominis est anima
scripti. Intention is the soul of an instrument. 3 Bulst. 67.
Functional. Also called structural. Decision
based on analysis of the structures the law constituted and how they are
apparently intended to function as a coherent, harmonious system. A Latin maxim
is Nemo aliquam partem recte intelligere potest antequam totum perlegit.
No one can properly understand a part until he has read the whole. 3 Coke Rep.
Doctrinal. Decision based on prevailing practices or
opinions of legal professionals, mainly legislative, executive, or judicial
precedents, according to the meta-doctrine of stare decisis,
which treats the principles according to which court decisions have been made
as not merely advisory but as normative. Some Latin maxims are:
Argumentum ą simili valet in lege. An argument from a like case
avails in law. Coke, Littleton, 191. Consuetudo et communis assuetudo ...
interpretatur legem scriptam, si lex sit generalis. Custom and common usage
... interpret the written law, if it be general. Jenk. Cent. 273. Cursus
curię est lex curię. The practice of the court is the law of
the court. 3 Buls. 53. Judiciis posterioribus fides est adhibenda.
Credit is to be given to the latest decisions. 13 Coke 14. Res judicata pro
veritate accipitur. A thing adjudicated is received as true. Coke,
Prudential. Decision based on factors external to the
law or interests of the parties in the case, such as the convenience of
overburdened officials, efficiency of governmental operations, avoidance of
stimulating more cases, or response to political pressure. One such
consideration, avoidance of disturbing a stable body of practices, is also the
main motivation for the doctrinal method. It also includes such considerations
as whether a case is "ripe" for decision, or whether lesser or administrative
remedies have first been exhausted. A Latin maxim is Boni judicis est lites
dirimere. The duty of a good judge is to prevent litigation. 4 Coke
Equitable. Also called ethical. Decision based on
an innate sense of justice, balancing the interests of the parties, and what is
right and wrong, regardless of what the written law might provide. Often
resorted to in cases in which the facts were not adequately anticipated or
provided for by the lawgivers. Some scholars put various balancing tests of
interests and values in the prudential category, but it works better to
distinguish between prudential as balancing the interests and values of
the legal system from equitable as balancing the interests and values of
the parties. It arises out of the Latin maxim, Ęquitas est perfecta
quędam ratio quę jus scriptum interpretatur et emendat; nulla
scriptura comprehensa, sed sola ratione consistens. Equity is a sort of
perfect reason which interprets and amends written law; comprehended in no
code, but consistent with reason alone. Coke, Littleton, 24.
Natural. Decision based on what is required or advised
by the laws of nature, or perhaps of human nature, and on what is physically or
economically possible or practical, or on what is actually likely to occur.
This has its origin in such ancient Latin maxims as: Jura naturę sunt
immutabilia. The laws of nature are unchangeable. Jacob. 63.
Impossibilium nulla obligatio est. There is no obligation to do
impossible things. D. 50, 17, 185. Lex non cogit ad impossibilia. The
law does not compel the impossible. Hob. 96. Lex neminem cogit ad vana seu
inutilia peragenda. The law requires no one to do vain or useless things. 5
Coke 21. Legibus sumptis desinentibus, lege naturę utendum est.
Laws of the state failing, we must act by the law of nature. 2 Rol. Rep.
Of these, only the first three, textual, historical, and functional, are methods of interpreting or constructing the written constitution of government, and the historical and functional methods may be more a matter of construction than interpretation. The last, natural, is construction (not interpretation) of the unwritten constitution of nature, or the unwritten constitution of society, which form a hierarchy of authority, with the constitution-->constitutiontitution of nature superior to the constitution of society, and the constitution of society superior to the written constitution of government. The doctrinal, prudential, and equitable methods are not interpretion or construction of any of these constitutions, although judges often claim they are. There is an misguided tendency among modern judges to misrepresent what are essentially prudential or equitable decisions as constitutional constructions. Too many lawyers are complicit in this by casting what are essentially prudential or equitable arguments into constitutional terms. There is nothing inherently wrong with making prudential or equitable decisions. The U.S. Constitution confers both law and equity jurisdictions on federal courts, as do the state constitutions. The problem comes with treating such decisions as establishing precedents, especially binding ones. It is one thing to treat a decision as a precedent that clarifies some ambiguity in the constitution, but quite anotherconstitutionlly insert a prudential or equitable decision into the constitution as a kind of amendment. Such decisions must not conflict with constitutions or constitutional staconstitutionften do. Doctrinal and prudential decisions are more troublesome. The doctrinal method may be compatible with the written constitution of government if it merely involves clarifications of ambiguities in the original text, but not when those doctrines depart from original legal understanding, as they sometimes do. The prudential method may be justifiable as necessary to handle large caseloads, but often neglect to render justice in particular cases, especially when they involve avoidance of controversy rather than a desire to settle all issues brought before the court.
Within these methods, we can, by study of the writings of the Founders,
and the writings they read, elicit such principles for interpreting or constructing the
Constitution for the United States as the following:
The Constitution is the written document. Although it
may be considered to include the understandings of its words as of the time of
ratification, it does not include the subsequent body of practices or
precedents upon which constitutional decisions might be based, which may or may
not be consistent with it, or authorized by it. The written document refers to
itself as "this Constitution", and provides for only four methods by which it
may be amended, all of which apply only to the written document.
The authority for provisions of the Constitution is the
ratifications and state admissions. Current consent or acquiescence, or
lack thereof, to the Constitution or any practice, does not affect the original
constitutive acts, and has no authority, unless expressed through adoption of
amendments as provided in Article V.
Provisions of the Constitution are mutually consistent.
There are no internal logical contradictions, except that a provision of an amendment
inconsistent with a previous provision supersedes that provision.
None of the words are without force and effect, except those superseded by
amendments, unless such amendments are repealed. Except
for the statement of purpose in the preamble, every word was intended by the
Framers to be legally normative, and not just advisory, declaratory, aspirational, or
exhortatory. Verba intelligi ut aliquid operantur debent. Words should
be interpreted to give them some effect.
Rights and powers are complementary. Every right
recognized by the Constitution is an immunity, that is, a right against a
positive action by government, and is equivalent to a restriction on delegated
powers. Conversely, every delegated power is a restriction on immunities. An
immunity may be expressed either as a declaration of the right, or as a
restriction on powers.
There are no redundancies within the original unamended
Constitution. However, amendments may be alternative ways of expressing
equivalent content in the original unamended Constitution or previous
amendments. More specifically, the Bill of Rights added no new content not
implicit in the original unamended Constitution, except the twenty dollar rule
of the Seventh Amendment.
The Constitution was intended to define a functionally
complete and harmonious system. That does not mean, however, that all
powers anyone might think the nation or any branch, level, office or department
should have, were actually delegated.
Original "intent" is functional, not motivational. The
private motives of the Framers or Founders are irrelevant and largely
unknowable, and likely to have been diverse. The common law rule of
interpretation understood by the Founders was to discern the functional role of
elements of the law, not the private purposes of the lawgivers.
The ratification debates are the best evidence of original
understanding. The arguments of those opposed to ratification are not just
the positions of the losers in the debates, which some might dismiss as not
indicative of original understanding. As the debates proceeded, understandings
evolved and clarified, and positions changed. Most opponents were satisfied by
adoption of a Bill of Rights, and by assurances by the proponents concerning
how the words of the Constitution would be interpreted, and those assurances
must be considered part of the original understanding. That means that a
construction to which the more significant "anti-federalists" would object is
almost certainly incorrect.
Powers are narrow, rights broad. The entire theme and
tenor of the ratification debates was that delegated powers were to be
interpreted as strictly as possible, consistent with the words, and rights as
broadly as possible, with the presumption in favor of the right, and the burden
of proof on those claiming a power. Potestas stricte interpretatur. A
power is strictly interpreted. In dubiis, non pręsumitur pro
potentia. In cases of doubt, the presumption is not in favor of a
Delegated powers cannot be subdelegated. The U.S.
Constitution vests all legislative powers in Congress, and all judicial powers
in the Supreme Court and inferior courts, except as specifically expressed.
Executive branch officials may subdelegate but must remain responsible for the
actions of their subordinates. There can be no authority exercised that is not
accountable through constitutional officials.Delegata potestas non potest
delegari. A delegated power cannot be delegated. 9 Inst. 597.
The power to regulate is not the power to prohibit all
modalities of something. It is only the power to issue prescriptions to
"make regular", enforceable only by deprivations of property or privileges, not
of life, limb, or liberty. There must always be some modality that is not
Implied powers are only to "carry into Execution" an
expressed power and not to do whatever is necessary to achieve the intent for
which a power might be exercised. Delegation of a power is delegation of
the right to make a certain kind of effort, not to do whatever is necessary to
get a desired outcome.
There can be no common law crimes. They are in conflict
with the prohibitions on ex post facto laws and bills of
Rights may not be disabled or unduly burdened by legislative
or executive process. "Due" process is judicial only, involving the
granting of a petition to disable a right of the defendant, with the burden of
proof on the plaintiff or prosecutor, and with the defendant having at least
those minimum protections that prevailed during the Founding. with similar
disablements having similar standards of proof and protection.
There is no right without a remedy. Ubi jus ibi
remedium. There must always be an accessible forum in which a complainant
has oyer and terminer for any petition.
The Founders were learning. "Original meaning" is not just about what the Founders consciously meant at the moment of ratification, but includes what they would discover with further study of the legal tradition they invoked in the words they chose. Thus, they referred to authors like Blackstone and Coke when they were unsure what they meant, and so must we.
Early practice indicative but not dispositive. Early practice by the Founders may provide evidence of their aspirations in the words they chose, but should not be regarded as perfect expressions of their intent. Practice can represent compromise with practical concerns and may lag behind the ideals contained in the words.
Mental models of mental models. Each of us has a mental model of the world that includes a model of the mental models others have of the world. Communication is possible only to the extent that our mental models of the mental models of others are somehow accurate or congruent. When a lawgiver issues a law, a command to others for future compliance, he is relying on others to understand his words the way he does, and those others are relying on him to use words with the meanings they have for them. But words are an imperfect way to convey meanings, and if the recipient of the command cannot interrogate the lawgiver for his meaning, he must try to improve his mental model of the lawgiver's mental model by such means as learning to accurately predict what the lawgiver will write about matters the recipient has not previously read.
Find the right level of abstraction. It was common for the Founders to use somewhat more concrete words to mean broader principles. Thus, "press" or "arms" is not limited to the technology of the time, but refers to the general function they served. "Militia" does not mean merely those legally obliged to respond to an official call-up, but defense activity generally.
We have three main approaches to interpretation or construction:
Seek original intent, or what the lawgiver hoped the words would accomplish, which in turn can be divided into:
- Motivational intent
- Functional intent
- Seek original public (legal) meaning of the lawgiver.
- Use the (common law) rules of interpretation accepted by the lawgivers.
The problem with the original methods approach is to identify and state such methods, which at the time of the Founding were mostly not explicit, but an art practiced by lawyers and judges, something they learned to do but probably not to explain, like horse riding or archery. The main evidence we have of what they were are the Maxims, some of which are listed here.
It is important to keep in mind that the meaning we seek is not our meaning, but the meaning the words had for the lawgivers, to the extent we can discern what what was, and that it was the public legal meaning, not the lay meaning of the streets. That is really a different language, then as now.
It is only important to focus on those words and phrases, about 80, that present the interpretative problems. Most of the Constitution does not. There are 53 in the original Constitution, 24 in the Bill of Rights, and 3 in the later amendments, although others might count them differently. They are highlighted here. That is a small number, which it should be possible to thoroughly and canonically explore and discover the original public legal meanings of through historical linguistic research, and present our reports to judges so they don't have to become expert legal historians. If we were to bear down on checking off every one of those, we might eventually settle most of the interpretative disputes, or at least until someone found more historical evidence.
1. Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23, 24 (1994).
For a more complete discussion of these principles see:
Landmark Court Decisions.
- Presumption of Nonauthority and Unenumeerated Rights
- Expanded bill of constitutional rights