The Modes of Constitutional Analysis: An Introduction (Part 1)

"This Legal Sidebar Post is the first in a nine-part series that discusses certain “methods” or “modes” of analysis that the Supreme Court has employed to determine the meaning of a provision within the Constitution. (For additional background on this topic and citations to relevant sources, please see CRS Report R45129, Modes of Constitutional Interpretation.)

Early in the United States’ history, the Supreme Court began exercising the power it is most closely and famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison, the Supreme Court asserted and explained the foundations of its power to review the constitutionality of federal governmental action. If a challenged governmental action is unconstitutional, the Court may strike it down, rendering it invalid. When performing the function of judicial review, the Court must necessarily ascertain the meaning of a given constitutional provision before applying its interpretation of the Constitution to the particular governmental action under review.

The need to determine the Constitution’s meaning through the use of methods of constitutional interpretation and, perhaps, construction, is apparent from the document’s text itself. While several parts of the Constitution do not lend themselves to much debate as to their intended meaning, much of the Constitution is broadly worded, leaving ample room for the Court to interpret its provisions before applying them to particular legal and factual circumstances. For example, the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment’s text alone does not squarely resolve whether the “right of the people to keep and bear arms” extends to all citizens or merely is related to, or perhaps conditioned on, service in a militia. This ambiguity prompted the closely divided 2008 SupremeCourt decision that ruled in favor of the former interpretation.

The Constitution’s text is also silent on many fundamental questions of constitutional law, including questions that its drafters and those ratifying the document could not have foreseen or chose not to address. For example, the Fourth Amendment, ratified in 1791, does not on its face resolve whether the government may perform a search of the digital contents of a cell phone seized incident to arrest without first obtaining a warrant. Thus, interpretation is necessary to determine the meaning of ambiguous constitutional provisions or to answer fundamental questions left unaddressed by the drafters. Some commentators have also noted the practical need for constitutional interpretation to provide principles rules, or standards to govern future conduct of regulated parties, as well as political institutions, branches of government, and regulators..."
Constitutional Analysis