Reading the Constitution

1. Interpreting Law Requires More Than Just Reading the Text.

I have learned over and over again that text is but one interpretive tool among many.

Beyond literal words. Legal interpretation, especially in complex cases, goes beyond plain meaning. Words can be indeterminate, like defining a "heap," or their meaning depends heavily on context, like understanding "fish for dinner." Consulting a dictionary alone is often insufficient.

Text is one tool. While text sets limits (e.g., "fish" doesn't mean "fowl"), it's just one tool among many. Over-reliance on text alone, as some textualists advocate, is like an artist painting with half a palette, missing crucial interpretive colors needed to capture the full picture of a law's meaning and application.

Practical understanding. Ordinary people understand meaning through context and purpose, not just dictionaries. Judges, too, must look beyond text to grasp what a law aims to achieve, especially when applying old laws to new circumstances like houseboats as "vessels" subject to admiralty law or snails on a train requiring a ticket.

2. Understanding a Law's Purpose Is a Crucial Interpretive Tool.

A purpose-oriented judge will ask: What does this phrase seek to do? And how?

Why did Congress act? A central question for purpose-oriented judges is "why?" Why did the legislature choose these words? What problem (mischief) did they seek to solve? How will a particular interpretation further or hinder that aim?

Purpose guides meaning. As Justice Holmes noted, a law's general purpose is a more important aid to meaning than grammar or formal logic. For example, interpreting "animals" on a train ticket requires asking the rule's purpose: Is it to prevent large animals, or does it apply to all creatures, including snails or mosquitoes?

Implementing objectives. Purpose-based approaches align with democratic values by seeking to implement the objectives of elected legislators. This helps ensure laws work better for those they affect, such as interpreting "costs" in a disability education law to include expert fees, consistent with the likely goal of helping parents secure appropriate education.

3. Considering Consequences Helps Judges Interpret Statutes Effectively.

To fail to consider practical, purpose-based arguments means (here and elsewhere) a governmental system that will work less well and risk confusion, burden, delay, and perhaps incoherence for those who must administer complex governmental programs such as Medicare.

Avoiding absurdity. Judges assume Congress did not intend interpretations that lead to obvious practical problems or nonsensical outcomes. For instance, interpreting a Medicare statute in a way that makes it nearly impossible for the agency to reimburse hospitals for costs would likely be inconsistent with legislative intent.

Workability matters. A purpose-oriented judge considers how a decision will affect related legal rules, practices, and the lives of those impacted. In the Clean Water Act case involving groundwater pollution, the Court adopted a flexible "functional equivalent" standard rather than a rigid rule, recognizing the undesirable consequences of either extreme interpretation.

Practical effects. Ignoring consequences can lead to laws that function poorly. Requiring lengthy notice-and-comment procedures for minor interpretive rules in a vast program like Medicare, as a purely textual reading might suggest, could create significant administrative roadblocks without evidence that Congress intended such a burden.

4. Legislative History Can Illuminate Statutory Purpose.

Legislative history also can prove a useful source.

Contextual clues. Legislative history, including committee reports, hearings, and floor statements, provides context for understanding a statute's purpose. While some critics dismiss it as unreliable or unconstitutional, it can reveal the problems Congress aimed to address and how they intended the law to function.

Beyond drafting errors. Legislative history is useful not just for correcting obvious drafting errors or identifying technical terms. It can help determine which of several possible reasonable purposes a statute embodies, especially when the text is ambiguous or politically controversial.

Understanding intent. Examining who drafted language, their stated objectives, and how the bill evolved can shed light on legislative intent. For example, the history of a statute limiting lawsuits against law enforcement officers revealed that the phrase "any other law enforcement officer" was intended to cover only customs and excise officials, not all federal officers, contrary to a purely textual reading.

5. Constitutional Interpretation Demands Flexibility and Attention to Values.

The nature of the document, its abstract phrases, its underlying values, its different phrases’ different objectives, taken together, all suggest that there will not be any single tool that, when applied to all its provisions, can produce satisfactory answers to a myriad of different interpretive questions.

More than a statute. The Constitution is a unique document: short, with broad, value-laden terms (like "liberty," "due process," "freedom of speech"), and intended to endure for centuries. Unlike statutes, its core principles are often implicit in its structure and purpose, not just explicit text.

Multiple tools needed. Given the Constitution's complexity and abstract language, no single interpretive tool (like textualism or originalism) can suffice. Judges must draw upon text, history, tradition, precedent, purposes, values, and consequences, weighing them based on the specific constitutional phrase and case.

Values are paramount. Many constitutional provisions embody fundamental values (democracy, human rights, equality, rule of law). Interpreting these provisions requires direct engagement with these values, recognizing that their application must adapt to changing circumstances to remain meaningful and effective over time.

6. Originalism and Rigid Rules Hinder a Workable Constitution.

This overly rigid reliance upon history is, I believe, harmful.

History isn't enough. Originalism, which seeks the "original public meaning" of constitutional text at the time of enactment, is a form of textualism. However, it often fails to provide clear answers, as historical evidence can be ambiguous or conflicting, and judges are not trained historians.

Ignoring consequences. A major flaw of originalism is its directive to ignore the practical consequences of interpretations and the purposes/values of constitutional provisions. This approach struggles to apply 18th-century understandings to modern problems like mass shootings or the internet, hindering the Constitution's ability to function in a changing world.

Regressive outcomes. Originalism can lead to regressive results by limiting rights to those contemplated by the (predominantly white male) framers, potentially undermining progress in areas like equality and personal liberty. It also creates tension with established precedents like Brown v. Board of Education, which may not align with original understandings but are vital to modern constitutional law.

7. Structural Constitutional Questions Require Practical, Not Just Textual, Answers.

I think it is fair to say that, in this area of constitutional law, textualism and its cousins are not helpful.

Text runs out. The Constitution's text provides little guidance on the scope of powers delegated to the legislative, executive, and judicial branches or how they should interact in the modern era. Terms like "legislative Power" don't specify whether Congress can delegate rulemaking authority to agencies.

Workability guides structure. Interpreting these structural provisions requires prioritizing the Constitution's objective of creating a workable government that can adapt to changing circumstances. This principle, articulated by Chief Justice Marshall in McCulloch v. Maryland, justifies practices like congressional delegation of authority to administrative agencies, despite a strict textual reading potentially suggesting otherwise.

Practical considerations. The evolution of government structure, such as the rise of administrative agencies, is driven by practical needs like specialized expertise and efficient regulation of complex modern issues (railroads, environment, etc.). A rigid textualist approach would struggle to accommodate these necessary adaptations, potentially rendering the government unable to address contemporary problems effectively.

8. Stare Decisis Is Essential for Legal Stability and Public Trust.

Stare decisis maintains a stability in the law; and that stability allows people to order their lives under the law.

Standing by precedent. Stare decisis, the principle of following earlier decisions, is fundamental to the rule of law. It promotes predictability, consistency, and fairness, ensuring that legal principles are based on law, not individual preferences, and allows people to rely on established legal rights.

Overruling is rare. While stare decisis is not absolute, overruling precedent requires strong justification. Reasons include significant changes in underlying facts (as in Mapp v. Ohio), changes in related law, or the precedent proving unworkable. The mere belief that an earlier case was "wrongly decided" is not, and should not be, sufficient.

Originalism's challenge. Textualism and originalism offer no clear method for applying stare decisis. If judges were free to overturn any precedent inconsistent with originalist principles, it would threaten legal stability and public confidence, as many long-standing cases might be deemed "egregiously wrong" based on this methodology alone.

9. Judicial Philosophy Evolves, Influenced by the Times.

But I do believe that slowly, over time, they have an effect.

Shifts in approach. The Supreme Court's dominant interpretive philosophy has shifted throughout history, influenced by the nation's changing circumstances and prevailing attitudes. Examples include the Lochner Court's emphasis on property/contract, the New Deal Court's embrace of judicial restraint in economic matters, and the Warren Court's focus on civil rights.

Responding to reality. These paradigm shifts were not arbitrary but often occurred in response to significant national challenges, such as rapid industrialization, economic depression, or the Civil Rights Movement. The Court's approach adapted to allow the government to address pressing contemporary problems, reflecting what Justice Frankfurter called the "climate of the era."

Public acceptance. While judges decide cases based on law, the Court's legitimacy and effectiveness depend on public acceptance. Historically, major shifts in judicial philosophy have coincided with or gained traction from broader changes in public opinion and understanding of national needs, suggesting that a new paradigm requires a degree of public support to endure.

10. A Pragmatic, Purpose-Oriented Approach Best Serves Democracy.

A purpose-oriented approach to statutory interpretation is more consistent with the democratic values upon which legislation rests.

Accountability. Interpreting laws consistent with their basic purposes promotes democratic accountability. Voters can better assess whether their elected representatives' policies are working if judicial interpretations align with legislative objectives, making it harder for legislators to blame courts for undesirable outcomes.

Workable laws. A purpose-oriented approach helps Congress write more effective laws. Recognizing that Congress cannot foresee every future application, judges who consider purpose can interpret ambiguous language in ways that allow statutes to function effectively in unforeseen circumstances, making the legal system more workable.

Enduring values. For constitutional interpretation, focusing on underlying values and workability ensures the document remains relevant and capable of addressing modern challenges. This pragmatic approach, rooted in the tradition of Chief Justice Marshall, allows the Constitution to adapt while preserving its core democratic and human rights principles, fostering a society where people can live together peacefully and prosperously.

Last updated: May 26, 2025