Background: Constitutional Methods

Read about the different constitutional methods that constitutional lawyers use to make their arguments.

Introduction

Throughout the course, we want to teach you how to think like a constitutional lawyer. What do we mean by that?

When you read the Constitution and interpret its text, it’s important to focus on how the Constitution either expands or limits the powers of the government. This is how constitutional lawyers read and interpret the Constitution.

The key is to try to separate your political views (what should be done—a policy question) from your constitutional views (what can be done—a constitutional question). For example, here’s a policy question: Should a public school principal search a student’s locker? And here’s a constitutional question: Does the Fourth Amendment restrict the power of a government employee—like a public school principal—from searching a student’s locker? Again, when interpreting the Constitution, our goal is to try to separate our political views from our constitutional ones.

That’s a bit of background about the basics of constitutional thinking. But what specific methods do scholars (and judges) use to interpret the Constitution? In other words, what types of arguments do they employ when tackling important constitutional questions?

As you think about the Constitution in the weeks, months, and years ahead, we’d like you to keep in mind the following forms of constitutional argument. They’re adapted from Philip Bobbitt’s landmark text, Constitutional Fate. Bobbitt is a law professor at Columbia and the University of Texas. Bobbitt’s big idea is that constitutional law is a tradition of argument and, if you look closely, you can identify seven standard forms of argument used by American constitutional lawyers.

Judges use these arguments to decide concrete constitutional issues in individual cases. But of course, different judges sometimes apply—and weigh—these arguments differently. And that means that judges don’t always agree on the Constitution’s meaning.

Even so, these seven forms of argument are familiar to pretty much all well-trained lawyers.

Let’s walk through them right now. We hope that you find them to be a useful way to think about the Constitution.

Text

Not surprisingly, this form of argument appeals to the text of the Constitution. The interpreter focuses on the meaning of the Constitution’s words, relying on common understandings of what the words meant at the time that the language was added to the Constitution. Because the goal is to discover the best reading of the Constitution’s text at the time of its ratification, the interpreter might look at the period’s leading dictionaries. And she might analyze how the relevant words were used in context in documents from the period. Overall, the interpreter tries to understand the Constitution’s text from the perspective of a reasonable person reading its words at the time of its ratification.

History

With this form of argument, the interpreter looks to the historical context of when the Constitution’s text was drafted and ratified to shed light on its meaning. To that end, the interpreter studies the debates that shaped a given constitutional provision’s framing and ratification.

Evidence might include:

Records from the Constitutional Convention.
Battles over the amendments in Congress.
Discussions in any ratifying bodies.
A period’s newspapers and pamphlets.
And accounts written by leading scholars about the period’s historical context.

By studying these materials, the interpreter looks to understand:

The key factors driving the push for constitutional reform (e.g., the Founders’ desire for a government stronger than the Articles of Confederation).
The paradigm evils that the ratifying generation was seeking to address (e.g., the Reconstruction Founders’ goal of protecting the rights of African Americans from the ex-Confederates after the Civil War).
Any broad principles that it was looking to write into the Constitution (e.g., equal voting rights for women with the Nineteenth Amendment).
And any evidence of how this generation expected the provision to apply to specific issues (e.g., the Fourth Amendment, the Founding generation, and the goal of checking abusive searches by government officials).

The overall goal of this method is to determine current constitutional answers by looking to evidence from the history of when a provision was added to the Constitution.

Structure

With this form of argument, the interpreter reads the Constitution holistically and tries to derive any structural principles embodied in its text. For instance, although the Constitution doesn’t include an explicit Separation-of-Powers Clause or Federalism Clause, it’s possible to infer that principle from the Constitution’s text and apply it in specific cases.

Doctrine

With this form of argument, the interpreter applies precedents established in earlier cases to new cases. This form of argument trumpets the virtues of remaining faithful to well-established precedent and shaping doctrine through an incremental process inside the courts. On this view, a successful interpreter connects her decision in a specific case with the Constitution’s meaning as articulated inside the courts over time, wrestling with how to apply previous rulings to new cases.

One phrase you will encounter this year is stare decisis, a principle that courts should usually defer to prior court decisions unless the precedent was clearly wrong. Stare decisis is often an appeal to the humility of a current court and the wisdom of past courts.

Prudence (or consequences)

With this form of argument, the interpreter seeks to balance the costs and benefits of a particular ruling, including its practical, real-world consequences and how it relates to a judge’s views about the proper scope of judicial power, competence, and role.

For instance, sometimes the interpreter will take her predictions about the policy effects of a ruling—whether good or bad—into account when reaching a decision in a constitutional case. Or other times the judge may look at a constitutional controversy and conclude that it’s a question that the courts can’t (or shouldn’t) answer—whether because of a judge’s limited knowledge in the area or because of concerns about unelected judges settling an issue that remains controversial in the courts, in the elected branches, and among the American people.

Finally, still other times the judge may look at a constitutional controversy and conclude that it’s a question that the courts are in the best position to address because of a judge’s independence and constitutional duties. On this view, the courts play a distinct role within our constitutional system. While courts should generally defer to the elected branches, there are times when courts should act. For instance, proponents of this view argue that courts should act when the political processes themselves have failed because of prejudice against certain groups who can’t get a fair shake in the elected branches. Or courts should sometimes act to check other attempts to choke off important information that makes our democracy work, like laws that infringe on free speech.

Not every interpreter recognizes this form of constitutional argument as legitimate. However, some interpreters—like Supreme Court Justice Stephen Breyer—argue that these types of arguments are essential to sound constitutional decision making.

Tradition

With this form of argument, the interpreter looks to any laws, customs, and practices established after the framing and ratification of a given provision. In this mode of analysis, the interpreter studies post-ratification history and searches for principles deeply rooted in American history, tradition, and ethos.

In part, interpreters often focus on what state governments and the national government have actually done over time. This form of argument is often used in the context of the separation-of-powers—drawing on the practices of the elected branches to settle a constitutional question, especially practices that are well-established and have been followed for many years.

This form of argument is also used in the context of key individual rights cases—both in identifying new rights that aren’t specifically listed in the Constitution and in applying key Bill of Rights protections (like the Second Amendment’s right to keep and bear arms) to the states (e.g., incorporation). For example, in Town of Greece v. Galloway, the Supreme Court has used this form of argument to uphold legislative prayer—based, in part, on longstanding government practice. In addition, even though there’s no specific Right to Privacy Clause written into the Constitution, the Supreme Court also used this form of argument to help to justify the Court’s move to recognize a right to privacy in the landmark case of Griswold v. Connecticut. Finally, the Court used this form of argument to justify applying the Second Amendment’s right to keep and bear arms against the states in McDonald v. City of Chicago. The fancy word for this process of applying the Bill of Rights against abuses by state governments is incorporation.

As with prudential arguments, not every interpreter recognizes arguments from tradition as legitimate. However, many Justices and scholars rely on them to make constitutional arguments.

Morality

With this form of argument, the interpreter draws on principles of moral reasoning—whether embodied in the natural law tradition or drawn from a judge’s own independent, present-day moral judgments.

For instance, consider the natural law tradition. Many members of the Founding generation believed that all human beings were endowed by God or nature with certain unalienable rights. To the Founders, these rights were rights that we weren’t able to surrender to government. The quintessential example of this type of right is the right of conscience.

Arguments from modern-day morality are often associated with broad declarations of sweeping rights that are difficult to root in the Constitution’s text or history.

As with prudential arguments and arguments from tradition, these arguments from moral reasoning (or natural law) are not recognized as legitimate by all constitutional interpreters. However, a variety of interpreters – including Supreme Court Justices – have relied on them to decide constitutional cases.

Conclusion

So, those are the seven forms of constitutional argument that lawyers most frequently draw on when interpreting the Constitution. Now, how do we use these arguments to engage in a constitutional conversation? In other words, how do we use the skills of the constitutional lawyer to engage in civil discourse about the Constitution?

To get us started, here are a few tips for engaging in constitutional conversations.

First, be sure that you’re asking constitutional questions, not policy questions.

Again, constitutional questions are based on whether the government has the power to do something. For example, Does the government have the authority to restrict the possession of firearms in certain sensitive places? And does the national government have the power to tax individuals?

Political questions are based on whether the government should do something. For example, should the government restrict the possession of firearms in certain sensitive places? And should the national government increase (or decrease) taxes?

Constitutional questions will not only help keep the conversation rooted in constitutional understandings, but it will also help us develop better questioning techniques.

Second, try to steer clear of “yes or no” questions. They rarely move the conversation forward.

And third, whenever possible, incorporate scholarly work into your answers. Scholarly evidence can help support your point. So, do your research. Take notes. And highlight information as you read through materials on the Constitution. Finally, when giving an answer, refer to the scholar and her work by name, refer to specific parts of the work, use your own words to explain it, and make sure to explain how the work answers the essential question. At the same time, do not use vague ideas that are only loosely connected to the question, talk about scholarly ideas without referring to the author or work by name, forget to explain what the information that you’re citing means, or forget to connect your evidence to the bigger picture and/or essential question.

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