How to Interpet the Constitution: A 10-Minute Crash Course

Guy-Uriel Charles (professor of law at Duke University) calls Michael Paulsen (distinguished university chair and professor of law at the University of St. Thomas in Minneapolis) ”one of the most brilliant, respected constitutional scholars of our era.”

Charles judges that The Constitution: An Introduction, Paulsen’s new book co-authored with his son and just published by Basic Books, is “perhaps the best, single-volume treatment of the Constitution ever written.”

Steven G. Calabresi, professor of law at Northwestern University, says it’s “the most readable and insightful introduction to the U.S. Constitution since . . . 1840. This book is a must read for anyone trying to learn about the U.S. Constitution.”

Akhil Reed Amar, professor of law and political science at Yale University, calls it “quite simply the best general short introduction to the Constitution ever written.”

Stephen Presser, professor of legal history at Northwestern University, says it is “the best introduction to the United States Constitution available. ”

John Copeland Nagle, professor of law at the University of Notre Dame, says ”This is the one book that I recommend to anyone who wants a comprehensive and enjoyable overview of the Constitution, what it means, and why it matters.”

High praise indeed.

In a recent two-part article for Public Discourse (an indispensable online journal about religion, law, and liberty), Dr. Paulsen offers us a crash course—part 1 and part 2—on the real questions about constitutional interpretation that you need to know.

“Ninety-five percent of constitutional law,” he writes, “amounts to deciding how to go about the enterprise of reading and applying the Constitution itself.” He identifies five broad categories of interpretive techniques that courts and commentators employ. Below is an outline of his main points.

1. Arguments from the Straightforward, Natural, Original Linguistic Meaning of 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.”

2. Arguments from the Structure, Logic, and Relationships Created by the Document as a Whole

“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.”

3. Arguments from the History, Original Intention, or Purposes behind an Enacted 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.'”

4. Arguments from 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.”

5. Arguments from Policy, Pragmatism, or Considerations of “Substantive Justice”

“As a technique of constitutional interpretation—of actual textual exegesis—of trying faithfully to ascertain the meanings of the Constitution’s words—policy-driven “interpretation” is, of course, completely illegitimate. . . . Moreover, what one person thinks is good “substantive justice,” another will think a wrongheaded atrocity. . . .  Did it ever occur to you that policy differences not actually addressed by the Constitution are to be resolved by democracy—by the institutions of representative government?”

How Do These Principles Fit Together?

Here is Paulsen’s exhortation:

Use these techniques in the order in which I have listed them, in a fairly strict hierarchy, proceeding down the list only to resolve uncertainties that remain at any given level, and never getting down so low as “policy.” Thus, text and structure have priority and primacy; evidence of intention has its limited place; precedent is dangerous and slippery and should never trump the written constitutional text, but might be useful for seeing what someone else has thought about an issue; and policy-driven interpretation is simply a bad joke.

Sadly, this is nearly the exact opposite of the order in which the modern Supreme Court uses these methods. The justices frequently start with policy, discuss endless precedents, and on rare occasions—when these prove unsatisfying—actually get to the text.

 

Finally, Paulsen addresses two clean-up issues.

Who Gets to Interpret the Constitution?

The wrong answer is “the Supreme Court.”

The right answer is that the Constitution does not specify a single authoritative constitutional interpreter, and that this is a singular, defining feature of its text and structure. . . . The correct answer to the question of who gets to interpret the Constitution is “everyone.” The framers of the Constitution quite sensibly considered the power of constitutional interpretation—the power to interpret all the other powers, and all the rights of the people—to be far too important a matter to vest in a single set of hands.

 

What Do We Do with Ambiguity?

Where the Constitution does not supply an answer, the Constitution does not supply an answer, and We the People get to do what we want, operating through the institutions of representative government created by the Constitution’s structure.

You can go to Public Discourse and read the whole thing—part 1 and part 2—with more elaboration on each of the points outlined above.