It’s final exam time at the nation’s law schools. That means it’s time for professors to concoct fiendish hypotheticals for essay exams and for students to cram, trying to sort out the various three-part, two-pronged, quadruple-somersault doctrinal “tests” and “tiers of scrutiny” with which the Supreme Court’s judicial decisions have cluttered the Constitution, and prepare to spit back the doctrinal gobbledygook in some equally incoherent form on the test.
This is what passes for “Constitutional Law” in our law schools these days: a hopeless mash-up of confusing half-truths, quarter-truths, and outright untruths, taught as “law.” For the desperate law student, I offer this super-duper two-part mini-review of everything you really need to know about constitutional law: part one today, and part two tomorrow.
A warning, however: this is probably not what your professor has been teaching you. It’s an unmasking of what he or she taught—and a brief recitation of the real, crucial questions about constitutional interpretation. Using what I say here might yield you nothing better than a C, depending on the instructor. But heck—that’s better than failing. Regurgitate what follows on the test and you might just pass; learn these principles in the next fifteen minutes and you will have learned more real constitutional law than your faithfully-attending, casebook-reading peers.
And as for the universe of non-law students out there: first, I commend you for your incredible good judgment! You are uncorrupted by a law school education! And I offer you the same mini-primer on “constitutional law,” to help you puncture the inflated puffery of your lawyer-friends (even lawyers need real people as friends) when they spout off about constitutional law “doctrine” in pseudo-intellectual fashion. This primer might also help you navigate through the fog of new Supreme Court decisions. ’Tis the season for these too. Once you realize what the justices are up to, you can see why it often makes so little sense.
First Principles: How to Interpret the Constitution
Ninety-five percent of constitutional law amounts to deciding how to go about the enterprise of reading and applying the Constitution itself. There are, roughly, five broad categories of techniques one might use.
First, there is the text. The Constitution is a written document, written at a particular time, addressed to a particular political community, reflecting certain assumptions, and designed to function as supreme written law on an ongoing basis. The simplest, most straightforward, and most correct way to interpret the Constitution is to read the words and phrases of the document and apply them in accordance with the meaning the words would have had to reasonably informed readers and speakers of the English language at the time the document was adopted.
That really is all there is to it. Sometimes the text uses terms of art or specialized eighteenth-century meanings that may require a little background knowledge or understanding of history. But that is not all that hard to acquire. In the end, simply reading and understanding the Constitution’s text is not an especially complicated intellectual exercise. It takes lawyers, judges, and law professors to turn it into something difficult and convoluted. And applying the text according to its natural meaning, in historical context, will properly answer most questions of constitutional law.
The Text, the Whole Text, and Nothing but the Text: A Mini-Outline
Second, there is the Constitution’s structure and logic. This is really just a slightly more sophisticated or specialized version of reading the text. It simply posits that you should read the whole text, understand the relationship of parts of the text to each other, and attend to the governing structures the document creates.
Article I specifies the enumerated powers of Congress, Article II concerns the powers of the president, and Article III the limited authority and jurisdiction of the federal courts. The Constitution’s division of the national government into separate, independent, co-equal branches creates our system of separation of powers and “checks and balances.” This has important implications for many issues of constitutional power. Likewise, the creation of a national government that has certain limited, specified powers means the states have the rest. This creates the second division of powers, typically referred to as “federalism.”
The rest of the Constitution’s architecture is important, too. Article IV further defines the relationship of the states to each other and to the national government. Article V explains how the Constitution’s text may be amended—a specific process that implies the document is otherwise permanent and that its words and meaning cannot be changed through any other method. That has important implications for constitutional interpretation. Interpreters must not simply adopt whatever meaning they want to the words of the text, or they are essentially doing an end-run around the Constitution’s exclusive method for amending the document.
Article VI establishes that “this Constitution”—the written document—is the “supreme Law of the Land” and trumps every law, regulation, or action of any branch of the government, or any of the states. Importantly, this includes the Supreme Court. The Constitution is supreme over the Court, not the other way around. Don’t let your professors get away with telling you differently! Article VI also requires all government officials, state and federal, to take an oath to support “this Constitution”—a mandate that reinforces the primacy, supremacy, and exclusivity of the Constitution’s text. Taken together, the provisions of Article VI reinforce the obvious correctness of the idea that constitutional interpretation is about interpreting the Constitution itself: a single, binding, authoritative written document.
Article VII simply says that the Constitution came into effect once nine of the thirteen original states had agreed to be bound by it.
The Bill of Rights—the first ten amendments—imposed specific limitations on the powers of the national government. These rights trump what otherwise would be the powers of the federal government, in the event of a conflict. The Ninth and Tenth amendments reinforce the structural principles of the original constitution as one with limited powers and limited authority over individual rights.
After the Civil War, the Thirteenth Amendment banned slavery, correcting the original document’s most serious flaw. The Fourteenth made the Bill of Rights’ “privileges or immunities of citizens” applicable against state governments, too, and mandated that states provide the equal protection of the laws to all persons. The Fifteenth Amendment forbade racial discrimination in the right to vote. The Progressive Era added a number of other constitutional amendments, and there have been a few other ones in modern times—many of which greatly expanded voting rights and the representative nature and accountability of the national and state governments.
That’s the Constitution itself, in mini-outline. Legitimate constitutional interpretation consists of attending to the original, natural linguistic meaning of the text, in context, including the architecture of the Constitution as a whole.
Beyond Text and Structure: What is the Role of “Original Intent”?
A third technique of constitutional interpretation is to look to the “original intent” (or “original understanding” or “history” or “purpose”) of those who adopted the text. This technique recognizes that sometimes the text’s meaning is unclear and that evidence of historical understanding can help clear up disagreements. A good constitutional interpreter, however, should recognize that “intention” best functions as evidence of the meaning of the words, not as a substitute for them. Because we have a written constitution, what ultimately counts is the historical meaning of the words the Constitution’s adopters used, not what they necessarily “had in mind.”
Two quick examples, both from the Fourteenth Amendment: The drafters of the amendment were clearly intent on protecting the equal civil rights of newly freed black slaves from state discrimination and private violence. That was their “original intent” and the purpose to which the amendment was directed. The framers might or might not have subjectively intended to ban racial segregation. Some evidence of original intent suggests that some at the time thought segregation was just fine and dandy, while others thought just the opposite. But what they said in the words they chose—what they enacted as supreme law—was that no state may deny to any person “equal protection of the laws,” and the meaning of the text prevails over whatever their (differing) subjective intentions or expectations might have been. Thus, if the irreducible meaning of “equal protection” is to forbid state classification for benefits or burdens on the basis of race, that settles the matter. Text trumps intention.
Again, the text extends the duty of equal protection to any “person.” Does this forbid unjustifiable discrimination on the basis of sex? The framers of this amendment evidently did not have women in mind when they mandated equal protection, but the amendment embraces women in words. Did the meaning of the word “persons” include women at the time? Obviously, it did. Again, text prevails over intention. Women are entitled to the equal protection of the laws because that is the meaning of the word person.
What types of different treatment of men and women might be consistent with “equal protection” is a different—and harder—question. Men and women are alike in many ways and different in others. Where there are legitimate, core biological differences, it is okay for government to treat men and women differently. (The trick is figuring out where the line is.)
The core point here is that “original intent” must be subordinate to the text itself. Intention can help you figure out the meaning of words in historical and linguistic context and serve as a boundary against extravagant manipulations of the words of the text. But intention is never the master; it is the servant of the text.
The Problem with Precedent
A fourth technique of constitutional interpretation is to look at precedent. This gives rise to incredible confusion, for the simple reason that the precedents hopelessly contradict one another and frequently contradict the document itself. The problem with many bad Constitutional Law courses is that they are all about the precedents, and not at all about the Constitution.
The short answer to the problem of precedent is that some precedents are sound—helpful interpretations of the Constitution that can help resolve doubtful points—and other precedents are unsound, unhelpful misinterpretations of the Constitution’s text, structure, and history. That’s really all there is to it. The sound precedents are useful guides; the unsound ones should be regarded as having no authority or validity whatsoever.
Indeed, and ironically, there is one notable, sound precedent that clearly refutes any argument for deliberately following unsound precedent: the famous foundational case of Marbury v. Madison (1803). Marbury is one of the very first cases most students learn in constitutional law class. It holds—correctly, on textual and structural grounds—that if an act of Congress violates the Constitution, courts must follow the Constitution and not the faithless act of Congress. In colloquial terms, the Court must “strike down” unconstitutional acts of Congress.
What often goes unnoticed, however, is that exactly the same reasoning applies to judicial decisions that conflict with the Constitution. If the Constitution says one thing and judicial precedent says another, a subsequent court, by the reasoning of Marbury, must follow the Constitution and not the erroneous judicial precedent.
The much-beloved common-law doctrine of stare decisis—the policy of following prior decisions of earlier courts—makes no sense when applied to a written constitution intended to serve as supreme law. The Constitution is supreme, not the judicial decisions misinterpreting it.
Besides, the doctrine of stare decisis has never been thought absolute, and never been thought required by the Constitution. So the choice of when to follow precedent and when not becomes wildly unpredictable and seemingly arbitrary. A delicious further irony is that the Supreme Court’s current doctrine of stare decisis appears not to require adherence to the Supreme Court’s current doctrine of stare decisis.
So I say unto you law students (and citizens): Consider precedent for what it may be worth in a particular instance as a guide to interpretation, but disavow entirely the judicial doctrine of stare decisis—the utterly indefensible practice of (sometimes!) following precedents that you are otherwise convinced are simply wrong. Truly I say unto you: If the Constitution says one thing and the judicial precedents say something else entirely, you must go with the Constitution every time.
We’re almost done with my short mini-review / explosion of “Constitutional Law.” You now know most of the legitimate—and one of the illegitimate—techniques of constitutional interpretation, and how to apply them to cut through the muck of the Con Law course. Tomorrow, we’ll finish the lesson with a couple more key points: the (obvious) illegitimacy of purely policy-driven, result-oriented “interpretation,” and an important principle concerning what to do when a provision of the Constitution is vague, ambiguous, or simply admits of a range of legitimate interpretations or applications.