The Modes of Constitutional Analysis: Judicial Precedent (Part 4)

"This Legal Sidebar Post is the fourth 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).

The Supreme Court’s prior decisions on questions of constitutional law are the most commonly cited source of the Constitution’s meaning. For most Justices, if not all, judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts. Although the Court routinely purports to rely upon precedent, iit is unclear how often precedent has actually constrained the Court’s decisions because the Justices have latitude in how broadly or narrowly they choose to construe their prior decisions.

In some cases, however, a single precedent may play a particularly prominent role in the Court’s decisionmaking. For example, a plurality of Justices relied on Roe v. Wade as controlling precedent in their opinion in Planned Parenthood v. Casey. In that case, the plurality reaffirmed Roe’s holding that a woman has a protected liberty interest in terminating her pregnancy prior to fetal viability, stating that the essential holding of Roe “should be retained.” Another example of the heightened role that precedent can play in constitutional interpretation is the Court’s decision in Dickerson v. United States. That case addressed the constitutionality of a federal statute governing the admissibility of statements made during police interrogation, a law that functionally would have overruled the Court’s 1966 case Miranda v.Arizona. In striking down the statute, the majority declined to overrule Miranda, noting that the 1966 case had “become embedded in routine police practice to the point where the warnings have become part of our national culture.”

More often, the Court reasons from the logic of several precedents in rendering its decisions. An example is Arizona State Legislature v. Arizona Independent Redistricting Commission, which held that the voters of Arizona could remove from the state legislature the authority to redraw the boundaries for legislative districts and vest that authority in an independent commission. In so holding, the Court examined the Elections Clause, which states that the “Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The Court determined that the term “Legislature” encompassed the voters of a state making law through a referendum. In reaching this determination, the Court relied on three cases from the early twentieth century to support a more expansive view of the term “Legislature.” The Court described one of these cases from 1916, Ohio ex rel.Davis v. Hildebrant, as holding that a state referendum was “part of the legislative power” and could be “exercised by the people to disapprove the legislation creating congressional districts.."
Constitutional Analysis 

The Modes of Constitutional Analysis: Original Meaning (Part 3)

"This Legal Sidebar Post is the third 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)

Whereas textualist approaches to constitutional interpretation focus solely on a document’s text, originalist approaches consider the Constitution’s meaning as understood by at least some segment of the populace at the time of the Founding. Though this method has generally been called “originalism,” constitutional scholars have not reached a consensus on what it means for a judge to adopt this methodology for construing the Constitution’s text. Disagreements primarily concern which sources scholars should consult when determining the Constitution’s “fixed meaning.” Originalists, however, generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other interpreters) is to construct this original meaning.

For many years, some prominent scholars (such as Robert Bork) argued that in interpreting the Constitution, one should look to the original intent of the people who drafted, proposed, adopted, or ratified the Constitution to determine what those people wanted to convey through the text. According to this view, original intent may be found in sources beyond the text, such as debates in the Constitutional Convention or the Federalist Papers. For example, in Myers v. United States, Chief Justice William Howard Taft, writing for the majority, held the President did not need legislative approval to remove an executive branch official who was performing a purely executive function. The Court sought the original meaning of the President’s removal power by looking at English common law, the records of the Constitutional Convention, and the actions of the first Congress, among other sources. Relying on these various sources, in his opinion for the Court, Chief Justice Taft wrote that “the debates in the Constitutional Convention indicated an intention to create a strong Executive.” Notably, in Myers the Court did not look at sources that would likely indicate what ordinary citizens living at the time of the Founding thought about the President’s removal power>

Over the course of Justice Antonin Scalia’s nearly thirty-year tenure on the Supreme Court, he and several prominent scholars explained that, as originalists, they were committed to seeking to understand the Constitution’s original public meaning. This method considers the plain meaning of the Constitution’s text as it would have been understood by the general public, or a reasonable person, who lived at the time the Constitution was ratified. This approach has much in common with textualism, but is not identical. The original public meaning approach to understanding the Constitution is not based solely on the text; rather, it draws upon the text’s original public meaning as a broader guide to interpretation.."
Constitutional Analysis 

The Modes of Constitutional Analysis: Textualism (Part 2)

"This Legal Sidebar Post is the second 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.)

Textualism is a mode of legal interpretation that focuses on the plain meaning of a legal document’s text. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time the terms were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. In other words, they are concerned primarily with the plain, or popular, meaning of the Constitution’s text. Textualists are generally unconcerned with a decision’s practical consequences; rather, they are wary of the Court acting to refine or revise constitutional texts.

The Justices frequently rely on the text in conjunction with other methods of constitutional interpretation. The Supreme Court will often look to the text first before consulting other potential sources of meaning to resolve textual ambiguities or to answer fundamental questions of constitutional law not addressed in the text. For example, in Trop v. Dulles, a plurality of the Court held that the Eighth Amendment prohibited the government from revoking the citizenship of a U.S. citizen as a punishment. When determining that a punishment that did not involve physical mistreatment violated the Constitution, the Court first looked briefly to the Eighth Amendment’s text, emphasizing that the “exact scope” of the phrase “cruel and unusual punishment” had not been “detailed by [the] Court.” The plurality then turned to other modes of interpretation, such as moral reasoning and historical practices, in deciding the case.

The Trop plurality’s use of textualism in combination with other interpretive methods is distinguishable from a stricter textualist approach espoused most famously by Justice Hugo Black. Consistent with his view that those interpreting the Constitution should look no further than the literal meaning of its words, Justice Black contended that the First Amendment’s text—which states “Congress shall make no law . . . abridging the freedom of speech, or of the press”—absolutely forbids Congress from enacting any law that would curtail these rights..."
Constitutional Analysis  

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