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Recent Supreme Court Jurisprudence and the Bill of Rights: Part 2—Schools of Thought Governing Legal Interpretation

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tom R. Hulst
November 21, 2022

The interpretation of constitutional and statutory law are important aspects of public administration in a democratic republic—as John Rohr phrased it, in “running a constitution.”  In the PATIMES article of August 22, 2022, Recent Supreme Court Jurisprudence and the Bill of Rights: Part 1—The Doctrine of Incorporation, I wrote “in taking the constitutional oath, public administrators are juridical partners and should mindfully balance the goals of sound public policy with an enduring understanding of constitutional history.” In Part 2, I unpack the schools of thought that undergird the interpretation of the Constitution and Bill of Rights today. While this article exposes the elements of two principal approaches to legal reasoning, most observers realize that a combination of interpretive methodologies is essential in the explication of public law.

The first school of thought may be referred to as textualism or originalism (here used interchangeably). These terms embody the idea that judges should give exclusive attention to the text of a constitution or statute. They should interpret legal text parsimoniously by conveying its limited original meaning. Supreme Court Justice Antonin Scalia, who died in 2016, defined textualism as “statutory interpretation that focuses on the original “ordinary public meaning” of a law’s text at the time of its passage.”  Textualism purportedly prevents judges from writing their own biases into constitutions and laws. Originalists also advocate legislative supremacy, wherein laws enacted by elected representatives take precedence over the interpretations of unelected activist judges. This approach to interpretation, in attempting to unearth original intent, often requires judges to become historians.

The second school of thought associated with jurisprudential interpretation may be referred to as living constitutionalism. Proponents believe that the Constitution is a living entity not an inanimate machine. The framers intentionally wrote the charter with broad phrases and realized it would be interpreted flexibly to meet the needs of each generation. The plain text of the document simply could not predict the needs of an evolving society. President Woodrow Wilson wrote in his book, Constitutional Government in the United States, “Society is a living organism and must obey the laws of life, not of mechanics.” Justice Oliver Wendell Holmes later wrote that “when we are dealing with words like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.” While this approach to interpretation construes words and phrases of the original document, it also applies the evolving values and standards of justice essential in a modern society.

These two judicial approaches to interpretation sometimes appear like dogmas or a kind of fundamentalism—with an unreasoning obsequiousness to a doctrinal creed. This binary view of interpretation has been promoted by interest groups and think tanks. In recent Supreme Court appointment hearings, nominees were often pressured to align themselves with one or the other schools of thought and their shibboleths—depending on which party controls the U.S. Senate. The appointment process is more political theater than a thoughtful debate on constitutional jurisprudence. This in turn results in Supreme Court decisions written as polemics to satisfy the tribalism of the groups that supported the justice’s nomination. 

Most scholars and practitioners acknowledge that employing a mix of interpretive strategies is important in the exegesis of public law. Observers have offered additional concepts for the process of legal interpretation that include: (1) Doctrinal Interpretation whereby a justice observes precedents (called stare decisis) and considers the legal traditions after enactment of a given provision; (2) Prudential Interpretation wherein a judge seeks to balance the costs and benefits of a decision on society; (3) Moral Interpretation where a jurist employs the tenets of moral reasoning—often emerging from the natural law tradition. In his work, Freedom’s Law: A Moral Reading of the American Constitution, Ronald Dworkin suggests that jurists should apply the abstract language of the Constitution with the understanding that it summons moral virtues such as social justice and equality before the law.

A classic work in legal reasoning, written in 1949 by Professor Edward H. Levi, from the University of Chicago, is still used in political science courses today. The crux of the work of a judge, he claims in An Introduction to Legal Reasoning, is “reasoning by example.”  “[R]easoning by example brings into focus important similarity and difference in the interpretation of case law. It is only folklore which holds that a statute if clearly written can be completely unambiguous and applied as intended to a specific use. Fortunately, or otherwise ambiguity is inevitable.” 

For the public administration community reasoning by example has a familiar ring. It harkens back to Charles E. Lindblom’s concept of “incrementalism” which depicts policymaking as “successive limited comparisons” of programs, budgets and policies. Change in public policy inevitably entails discreet strategic steps rather than large dramatic leaps. The ideas of incrementalism, reasoning by example and doctrinal and moral interpretation should receive greater emphasis by our Supreme Court lest we allow men long dead do our thinking for us.

Part 3 of the series will further examine the interpretive approaches used in two recent Supreme Court decisions: Dobbs v. Jackson Women’s Health Organization regarding abortion; and New York State Rifle and Pistol Association Inc. et al v. Bruen concerning the Second Amendment to the Constitution.

Author: Tom R. Hulst received an MA in public administration from Washington State University, served as policy advisor to Governor Daniel Evans, administrator in the State Office of Public Instruction, and superintendent of Peninsula School District. He published The Footpaths of Justice William O. Douglas in 2004, been a long time ASPA member, and currently teaches politics at Tacoma Community College. 

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