Judicial Interpretation: An Introduction
By Damon Huss
Under Article II, Section 2, of the U.S. Constitution, presidents appoint federal judges and justices of the U.S. Supreme Court. Since all federal judges serve lifetime terms, a president’s selection can have long-term consequences. When making a selection, a president will look into many things about a nominee, among them the nominee’s judicial philosophy and way of interpreting the Constitution.
What are the different theories of judicial interpretation? Generally, they can be grouped in one of two broad categories: originalism and nonoriginalism. The following discussion is meant to be an introduction and not an exhaustive list of every theory:
Originalism. Black’s Law Dictionary defines originalism as the “theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it.” They tend to think that the amendment process in of the Constitution is the only way to change the Constitution.
Our [originalist] manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a ‘strict constructionist,’…. I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.
Justice Scalia also subscribes to textualism, which means he interprets the meanings of the words in the Constitution as they were understood at the time they were written. Strict constructionism is only one kind of textualism, and is defined in Black’s Law Dictionary as the “doctrinal view of judicial construction holding that judges should interpret a document…according to its literal terms, without looking to other sources to ascertain the meaning.”
Other originalists include Robert Bork, Justice Clarence Thomas, and Yale law professor Akhil Reed Amar. (It should be noted that Scalia, Bork, and Thomas are considered conservatives, but Amar is considered a liberal.)
Nonoriginalism. In the legal world, this set of theories is also sometimes called noninterpretivism. Black’s Law Dictionary defines noninterpretivism as “the doctrine holding that judges are not confined to the Constitution’s text or preratification history but may instead look to evolving social norms and values as the basis for constitutional judgments.” They tend to think that the Constitution’s meaning evolves over time through legislation, judicial opinions, and the amendment process.
For example, Supreme Court Justice Stephen G. Breyer argues his book Active Liberty: Interpreting Our Democratic Constitution that the Constitution needs to be interpreted according to its underlying democratic purpose. He states:
My thesis is that courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts…. It finds the Constitution’s democratic objective…a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike.
The Living Constitution is a nonoriginalist idea. It is the principle that the meanings of the Constitution’s terms should be interpreted for what they currently mean rather than what they literally meant in 1787 or 1791.
Other nonoriginalists include Harvard law professor Laurence Tribe, Judge Richard Posner, and Justice Thurgood Marshall (1908–1993). (Breyer, Tribe, and Marshall are considered liberals, but Posner is considered a conservative.)
In the classroom, students can use CRF’s lesson “Detaining U.S. Citizens as Enemy Combatants” in Bill of Rights in Action, Vol. 21 #1 to determine which justices expressed originalist or nonoriginalist opinions in the case of Hamdi v. Rumsfeld.