Kenneth R. Thomas
Legislative Attorney
The United States Constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government (and, to a lesser extent, state governments), and, finally, a series of legal disabilities on the exercise of those authorities (such as protections for individual rights). The document also addresses the complicated legal relationship between the federal government, state governments, and the persons subject to their respective jurisdictions. Judicial interpretation of some of the Constitution’s provisions, however, has varied over the last two centuries, leading to concerns regarding the ultimate validity of these decisions.
Whether it is necessary to have a unified method of constitutional interpretation to analyze all aspects of the Constitution is itself a matter of debate. For instance, there would appear to be some constitutional questions that, because of the clear meaning of the text, do not require the application of a sophisticated theory of constitutional interpretation in order to reach a conclusion. On the other hand, there are provisions of the Constitution where the text itself is so abstract or ambiguous, such as the Fourteenth Amendment clause requiring due process or equal protection, that analysis of information from outside of the constitutional text, such as an examination of the history, structure, purpose, and intent of the relevant provision, is necessary.
The use of historical documents contemporaneous with the drafting and ratification of the Constitution to help inform constitutional doctrine is sometimes referred to as “originalism.” Various other theories of constitutional interpretation seem to diverge from originalism when reference is made to documents or sources outside of these “original” documents. In essence, the separation between “originalist” and other theories of constitutional interpretation appears to arise in those cases where, at least according to some commentators, the reference sources cited by originalists do not provide sufficient clarity as to the meaning of a particular constitutional provision, or even whether such terms were intended to be decided based on contemporaneous sources. These situations most often arise where the constitutional provision in question (e.g., “equal protection”) is, by its nature, subject to varying levels of generality. For this reason, the problem of where to set the level of generality can have significant impact on constitutional interpretation.
As there are many commentators who have proposed various refinements of theories of constitutional interpretation, this report will limit itself to selected originalist theories and some major theories that have arisen to address perceived problems with originalism. This report will first examine the historical basis for theories of constitutional interpretation, and will consider two schools of originalism—“original intent” and “original meaning”—along with criticism of those schools. The paper will then consider the role of judicial precedent and pragmatism in constitutional interpretation. Finally, the report will consider theories relating to the identification and justification of heightened constitutional protections for fundamental rights.
Date of Report: February 15, 2011
Number of Pages: 15
Order Number: R41637
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Legislative Attorney
The United States Constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government (and, to a lesser extent, state governments), and, finally, a series of legal disabilities on the exercise of those authorities (such as protections for individual rights). The document also addresses the complicated legal relationship between the federal government, state governments, and the persons subject to their respective jurisdictions. Judicial interpretation of some of the Constitution’s provisions, however, has varied over the last two centuries, leading to concerns regarding the ultimate validity of these decisions.
Whether it is necessary to have a unified method of constitutional interpretation to analyze all aspects of the Constitution is itself a matter of debate. For instance, there would appear to be some constitutional questions that, because of the clear meaning of the text, do not require the application of a sophisticated theory of constitutional interpretation in order to reach a conclusion. On the other hand, there are provisions of the Constitution where the text itself is so abstract or ambiguous, such as the Fourteenth Amendment clause requiring due process or equal protection, that analysis of information from outside of the constitutional text, such as an examination of the history, structure, purpose, and intent of the relevant provision, is necessary.
The use of historical documents contemporaneous with the drafting and ratification of the Constitution to help inform constitutional doctrine is sometimes referred to as “originalism.” Various other theories of constitutional interpretation seem to diverge from originalism when reference is made to documents or sources outside of these “original” documents. In essence, the separation between “originalist” and other theories of constitutional interpretation appears to arise in those cases where, at least according to some commentators, the reference sources cited by originalists do not provide sufficient clarity as to the meaning of a particular constitutional provision, or even whether such terms were intended to be decided based on contemporaneous sources. These situations most often arise where the constitutional provision in question (e.g., “equal protection”) is, by its nature, subject to varying levels of generality. For this reason, the problem of where to set the level of generality can have significant impact on constitutional interpretation.
As there are many commentators who have proposed various refinements of theories of constitutional interpretation, this report will limit itself to selected originalist theories and some major theories that have arisen to address perceived problems with originalism. This report will first examine the historical basis for theories of constitutional interpretation, and will consider two schools of originalism—“original intent” and “original meaning”—along with criticism of those schools. The paper will then consider the role of judicial precedent and pragmatism in constitutional interpretation. Finally, the report will consider theories relating to the identification and justification of heightened constitutional protections for fundamental rights.
Date of Report: February 15, 2011
Number of Pages: 15
Order Number: R41637
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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