THE JURISPRUDENCE OF CONSTITUTIONAL INTERPRETATION

The judicial function is all about interpretation. Judges and justices do not make law - that is the role of the legislature -- justices interpret existing law. Interpretation is an art, not a science. Sometimes, it's specific; other times, interpretation only yields more abstraction and obtuseness. Think of constitutional interpretation as trying to interpret the meaning of dreams. The dream in this case is the basic dilemma of any constitutional democracy -how to assure majority rule while protecting minority rights (the Madisonian dilemma of avoiding tyranny by either the majority or minority). In order to resolve this dilemma, one needs some kind of theory, a guide, a roadmap, something to follow. It doesn't really matter which theory yields the most correct conclusions, as long as you have a theory which justifies why you are there trying to resolve the dilemma, and that theory harmonizes or resonates well with the goals of a constitutional democracy. There have been many debates over the different modes of constitutional interpretation. The first debate was in Marbury v. Madison (1803) when the Supreme Court first asserted its power of judicial review. Not only did this famous case establish that the Supreme Court would be the sole interpreter of the constitution, but it laid down several important ground rules, or assumptions (for later theories):

Assumption 1 - the Constitution is a set of rules Assumption 2 - the rules in the Constitution are to be regarded as supreme Assumption 3 - the rules embodied in legislation are inferior Assumption 4 - in cases of conflict, inferior rules must give way to superior rules Assumption 5 - in cases of dispute, it is the role of a judge to determine what rules to apply Assumption 6 - the standard for assessing constitutionality must be the Constitution itself, not what judges would prefer the Constitution to mean

MODES OF CONSTITUTIONAL INTERPRETATION 1. ORIGINAL INTENT, aka Original History, intended meanings of words - the
reasoning behind this approach is that the framers carefully debated and chose their words precisely to produce neutral principles of law. Advocates claim it fosters consistency and stability in law, and keeps rights that exist today from ever disappearing tomorrow. Critics claim that it can be easily used to disguise ideological ends, that the framers were not of one mind, and historical records are lost. The doctrine of original intent was used in Hustler v. Falwell (1988) to find that cartoon parodies are a form of protected First Amendment expression. Intent of the framers is also the logic behind reasonable expectation of privacy in Katz v. U.S. (1967). Another place where the doctrine is framed is over whether capital punishment is cruel and unusual, as those words were used by the writers of the Eighth Amendment. The leading proponents of original intent are Justice Stevens and to a lesser extent, Justice Ginsburg.

2. TEXTUALISM, aka Literalism, Plain Words approach, ordinary meanings of words - this approach doesn't look any further than the words of the Constitution itself; it

doesn't try to infer any intended meanings. The reasoning is that justices should take the words as written and promulgated to the people of the United States. A pure textualist, or literalist, approach looks for key phrases like "Congress shall make no law...abridging the freedom of speech" and finds that no law means no law. Reading the Constitution literally is also called strict construction. Other strands of textualism try to understand what the words would have meant to the people at the time they were written. Advocates claim it produces value-free jurisprudence and keeps justices in touch with the people. Critics claim it leads to inconsistent decision making, and represents a static, non-living document view of the Constitution. Textualism is often found in Fourth, Fifth, and Sixth Amendment cases involving criminal procedure when the Court decides to go off in some new expansionist or restrictionist direction. Textual analysis was present in Coy v. Iowa (1988) which struck down a system in which child witnesses could testify behind a screen. The leading proponent of textualism is Justice Scalia and to a lesser extent, Justice Rehnquist.

3. PRECEDENT, aka Stare Decisis, look at previously decided cases - this is the
doctrine of stare decisis (let the decision stand) which means that the Supreme Court looks at its own past decisions. Technically, all courts are bound to follow the rule of law in all previous decisions by higher courts (the Supreme Court being no exception), in what is called the holding. The holding of a case is the opposite of dictum, what is irrelevant to decide a case. For example, if a case involves overturning a confession police obtained from a mentally retarded person, the part about the person being mentally retarded would be the dictum, and the rule that police should not obtain confessions from any mentally challenged person would be the holding. Advocates claim that precedent serves as a clearcut guide, makes interpretation predictable, and keeps the Court from reversing itself. Critics claim that precedent is used as a weapon rather than guide, justices often pick and choose which precedents they like, and that the Supreme Court has generated so much precedent that support for any conclusion is possible. Precedent is often used as a rationale to limit the rights of criminal defendants. The leading proponents of precedent today are Justice Rehnquist and to a lesser extent, Justice O'Connor. Precedent was present in the reasoning behind the famous desegregation case of Brown v. Board of Education (1954), although that case also involved social scientific testimony that Justices who follow precedent don't always favor.

4. LOGICAL, aka Mathematical, put words into logic formulas - this is the
approach that justices ought to engage in formal reasoning, usually in the form of a syllogism, a type of logic which draws a conclusion from a major and minor premise. Advocates claim that it gives legal reasoning a scientific justification. Critics claim that minor premises are often faulty and lead to invalid conclusions. Currently, there are no Supreme Court justices that use this method. The most famous case to use logical reasoning is Marbury v. Madison (1803) which created the right of judicial review.

5. PRUDENTIALISM, aka Doctrinal, if appropriate for adversary process - this

is a common approach found throughout the court system. What every prosecutor knows is that you only try cases you can win with, look good in court with, and call forth established doctrines or rules of law. The Supreme Court is no exception. It avoids unfamiliar ground, but in some cases will decide on a case very carefully and thoroughly simply in order to

allow important legal arguments to be heard, to enhance the prestige of the Court, and to clarify important doctrines. It's unknown how many Supreme Court justices explicitly adhere to this approach, but whenever you get lengthy opinions that cover a wide range of subjects and doctrines, you know its being used. An example is Baker v. Carr (1962) which was a judicial review over legislative redistricting case involving the political question doctrine, the Equal Protection clause, standing, and justiciability.

6. STRUCTURALISM, aka Aspirational, if maintains social order - this is a

Constitution as "living document" approach which looks at each and every case as unique, and is more concerned with remedy-making than rule-making. More case specific than philosophical, this method usually results in a balancing test, matching the powers of government on one side and the rights of individuals on the other side. It's unknown how many Supreme court justices use this method, but it's assumed the logic behind the famous abortion case Roe v. Wade (1973) is the idea of a living constitution.

JURISPRUDENCE
Jurisprudence is the science dealing with the rules and principles of law that have been adopted for the government of an organized society. The word was first used in the Justinian code and defined as knowledge of divine and human matters, knowledge of what is just and unjust. Over the years, it has come to mean the study of law as a whole, the philosophy of law, or legal theory. Think of it as an attempt to see the forest for the trees. Jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Many academic disciplines have laid claim to their own brands of jurisprudence, and each have tried to elucidate the roots of law, explain the unintended consequences of law, promote a vision of the social order that a law-driven society is aimed for, and how the law puts that vision into effect. Several of the most well-known fields of jurisprudence are listed below with only the briefest of explanations.

1. ANALYTICAL - the classification of law into conceptual categories 2. SCIENTIFIC - aka Jurimetrics; Social Science applications in law 3. LEGAL REALISM - study of law in action, discretion, responsiveness 4. MECHANICAL - application of precise rules of law and evidence; formalism 5. MEDICAL - importance of forensic law, expert testimony, therapeutic justice 6. MARXIST - a sociology of law approach, seeing law as tool of ruling class 7. POST-MARXIST - the approach of Habermas, seeing the duality of law 8. SOCIOLOGICAL - various theories of law in context of time & place, living law 9. FEMINIST - the study of law from a gendered liberal or radical perspective 10. CRITICAL LEGAL STUDIES - approaches which break with traditional liberalism
Modern analytical jurisprudence can be traced to the 19th century English jurist, John Austin. He defined law as a set of commands which carry sanctions and impose a duty to

obey. He also said the duty to obey is not related to morality but to habit. This separation of law from morality is known as analytical positivism. It's analytical in that it breaks the law down into categories by its content, and it's positivism in that it takes the law as written, not by what it intends to do. The foremost proponent of a completely positivist position was the Austrian philosopher, Hans Kelsen, who said that the law is obeyed simply because it's there. Constitutional provisions reflect the most basic norms in society, and laws are valid because they were enacted in conformity with constitutional procedures. Followers of Kelson's approach rank the norms in society to use as a gauge to analyze, explain, and classify which legal rules are primary and which ones are secondary (or derivative). By far, however, the most popular exponent of analytical jurisprudence is H. L. A. Hart, who takes issue with the notion of obedience by habit and draws a clear distinction between primary and secondary rules. Primary rules have the quality of being either-or, yes-no, good-evil propositions. People obey them because the laws in this case impose a sense of duty. Secondary rules are principles with no clear-cut answers. They can only serve as a guide. People obey secondary rules because they confer powers and privileges. Hart believed that the mixture of primary and secondary rules is what gives law its creative, dynamic character, and that's what people obey -- the thing they perceive as growing and far superior to customs and norms.

Sociological jurisprudence picks up on the question of why people obey law from
generation to generation. Any understanding of the "living law" must take into consideration the context of time and place. After all, norms, morality, and customs vary from one generation to the next, and from society to society. Law may only play a small part in social control and order. One of the leading figures of sociological jurisprudence was the Austrian jurist, Eugene Ehrlich, who first pointed out that any law not regularly enforced by law enforcement officials is not part of the living law. In America, most sociological jurisprudence was overshadowed by the legal realism movement of the 1920s and 1930s. Legal realism holds that judges do more than apply law; they make law, and in fact, have vast amounts of discretion. Only by studying judicial action, or consequences, can the legal system be seen as anything more than a set of rules on paper. The most distinctive legal realist was Justice Oliver Wendell Holmes, widely regarded as the wisest lawyer in American history. Although he said many important things, his basic conception was that law is obeyed out of experience. Potential criminals, for example, don't do the crime because they know somebody who did the time, this vicarious experience being no less real than direct experience. He denied that the law followed any sense of mechanical logic, preferring instead to say that wanting to become a lawyer is divinely inspired. It's not that Holmes was a theologian, but he believed that there was a bit of divinity in the study of law, that one could ascertain in the study of precedent, for example, glimpses of an unfathomable process, a hint of universal law, or echoes of the infinite. His speeches were always popular at law school graduations, and it didn't hurt that with his flowing white hair, he was a dead ringer for God.

A contemporary of Holmes was the Harvard jurist, Roscoe Pound, widely regarded as the founder of American sociological jurisprudence. His is known mainly for his attacks on mechanical jurisprudence, and his insistence that the law ought to be made responsive to the practical needs of society. Any changes in society necessitate change in law. The law must be stable, but it must also not stand still. Judges should break with precedent, and judge-made law is superior to legislative law. If the law is to survive, it must adapt to its environment. Legal reform is as old as history; as long as civilization keeps moving, the law must move with it. Although it sounds like it, Pound was no radical, however, as he opposed President Roosevelt's New Deal, and what separated him from the legal realists was his insistence that sociological jurisprudence could be followed logically to produce consistent results in each case. Pound also pioneered the use of social science applications in law, such as from criminology, psychology, anthropology, and other disciplines, which later gave rise to various forms of scientific and medical jurisprudence. He, and Holmes, remained firmly opposed to Marxist jurisprudence, however, on grounds that the personalities of judges, not the ruling class, controlled the mode of legal reform. Other legal realists included Karl Llewellyn, Herman Oliphant, Felix Cohen, Underhill Moore, Hessel Yntema, Jerome Frank, and Justice Benjamin Cardozo. All had different things to say or prove, such as Karl Llewellyn, who showed how precedent could be used to justify a judicial decision either way, or Jerome Frank, who argued that courts do not actually consider facts, only selective information far removed from original events. Hence, the uncertainty, unreliability, and adversarial stress of the fact-finding mission proved that there was no way to attribute logic or predictability to judicial decision-making.

Post-Marxist jurisprudence is a bit beyond the scope of this lecture (enterprising students are welcome to explore some of the Jurgen Habermas resources below), but the
basic approach is similar to Frank's assertion about the adversarial stress of a court's factfinding mission. Trials, as most people know, consist of fact-finders (the jury) and lawfinders (the judge). The legal realists only pointed out that uncertainty in one (fact-finding) leads to uncertainty in the other (law-finding). Post-Marxists, like Habermas, pointed out that not only is there a tension between these two missions, but that judges, in order to sound sincere and genuine in their interpretations must engage in a type of rationality that is completely instrumental in attempting to dominate the decision-making of others. Law is therefore a system mechanism for money and power justified on the basis of abstract principles of subjective moral-practical concerns. In other words, the more a judge justifies their decision on grounds that it is good for society, the less grounded they are in their personal lifeworld and the more divorced they are from any ethical decision-making. Never trust a bureaucrat who says its for your own good. Other post-Marxists such as Niklas Luhmann say that law is an autoopoietic system which no longer needs any justification in terms of normative points of view.

Feminist jurisprudence comes in many varieties which are essentially a lifeworld, or

worldview. At its simplest, feminism seeks equity, autonomy, and liberty. Liberal feminism (sometimes called second-wave feminism) asserts that history and law are characterized by male domination. Radical feminism abandons maleness as a reference point altogether. To

mention some names, Catherine MacKinnon and Andrea Dworkin (not to be confused with Ronald Dworkin, a proponent of precedent theory) are notable for their drafting of a Model Antipornography ordinance. Lenore Walker also wielded great influence in getting the battered wife syndrome accepted by courts. Susan Estrich is also widely known for her work on rape law reform.

Critical legal studies (often abbreviated CLS) is an approach which believes that the
logic and structure attributed to law grow out of the power relationships in society. Law is nothing more than a mere collection of beliefs and prejudices which legitimize the injustices of society. CLS, as a whole, aims to overturn the hierarchical structures of society, and would like to see the law used as a tool for this. CLS draws from many sources -- feminism, Marxist, poststructuralism, postmodernism, deconstructionism -- and some of its leading exponents are Roberto Unger, Robert Gordon, Morton Horwitz, and Duncan Kenney. There's also subfields of CLS called critical race theory (CRT) which is concerned with the role of race in law, and critical race feminism, which is concerned with the impact of the legal system on women of color. Unger's analysis, for example, finds that judges exercise discretion in ways that favor capitalists over workers, men over women, teachers over students, adults over children, and whites over nonwhites.