Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, December 24, 2008

Issues in Constitutional Interpretation and their Bearing on the California Constitution

In a blogger post, I made a very truncated and opaque reference to textualism and non-textual interpretations and it was requested that I expand a bit. Since it's useful in terms of this incoming administration too, here goes. This is a broad primer but could be helpful to those who are not used to seeing constitutional arguments in print.

The great chief Justice John Marshall who sat from 1801-1835 wrote famously in McCulloch v. Maryland (1819) "We must never forget that it is a constitution we are expounding." These words remind us that a constitution is somehow different from a statute, so the philosophy of interpretation should be different. This may cause more confusion than it solves. (In this same case, he wrote the even more famous quote, "the power to tax is the power to destroy.")

How one approaches constitutional interpretation depends a lot on what you think a constitution is supposed to be. I will miss some, but broad schools of thought are textualism, structuralism, originalism, the "living constitution," and others with less well known names. Judicial interpretation of the constitution is also constrained or to some extent must be negotiated within a set of legal maxims or "canons of interpretation" of longstanding authority, most with Latin names. For example, the "inclusio unius est exclusio alterius" principle, that means that by listing (including) certain items, one is impliedly excluding other non-listed items. This is why the 9th Amendment explicitly states that the listing of certain rights in the Bill of Rights shall not be construed, "to deny or disparage others held by the people." In other words, don't apply the inclusio unius principle to the bill of Rights. Conservative scholars rarely take heed of this interpretive maxim.

Broadly speaking, textualism is the belief that the text (sometimes the "plain meaning" of the text) should govern. Textualists take the constitution literally, as they see it. The theory is quite modern in some sense, based on the notion of positive law (law written by the legislature) not natural law (law supposedly preexisting the constitution). It holds that a legislature can only produce a text, and that text must itself produce meaning. Things such as legislative history are not helpful because they undermine the text, which is all we can look to. Textualists employ grammatical analysis often. One criticism of textualists is that they allow for interpretations that were never intended. Another criticism of textualism is that it is too limiting. It is more appropriate to statutes, not constitutions. An originalist interpretation of the 8th amendment prohibition against cruel and unusual punishment would insist that it must be both cruel and unusual to be forbidden. Cruel and common, or unusual but not cruel, would be permissible. A textualist would also note that because the constitution discusses "capital crimes" in other places, it is textually impermissible to include that capital punishment violates the 8th amendment.

Originalism is often confused with textualism, but is distinct. It argues that words must be given their original, intended meaning. So they rely on historical discussion of what was intended. Most non-textualists accept the value of "legislative intent," but few go so far as originalists. An originalist interpretation of the 8th amendment bar on cruel and unusual punishment asks what that was supposed to mean in the 18th century. So if it was considered cruel and unusual then, it would be barred, but later modern judgments of cruelty do not matter. The best medical care available in 1791 would be considered cruel to administer today; this would not matter to originalists.

Structuralists seek to gain meaning from the structure of the constitution. Structuralists believe that the constitution was intended to have three separate but co-equal branches of government. They interpret limitations of power in regards to this overall scheme. The "unitary executive" model (the idea that the president has inherent executive powers that are unchecked) flows from this idea. Other structuralist ideas would be to interpret the bill of Rights as a limitation on the preceding powers of government, rather than (as textualists might) an equal text to be balanced against the equally relevant original text. So a structuralist might see the First Amendment as a limitation on the power to grant copyrights, while a textualist would view the First Amendment as intended to be balanced with the copyright power. Structuralism views the 8th amendment bar on cruel and unusual punishment as a limitation on executive authority. Structuralism does not explain its reach.

The "living constitution" attributed to various sources, and associated often with Laurence Tribe, philosophically rejects the "dead hand of history" approach. The argument is that it is nonsensical to argue that the 8th amendment would mean something different today - if the same text were enacted today - than it does because the text was enacted 220 years ago. This view argues that the constitution can only be interpreted through modern eyes, because that is all we have. It argues that the constitution is foremost a political document balancing powers, rights, and duties, so is meant to be interpreted as best suits our present situation. For these people, the 8th amendment bar on cruel and unusual punishment is a limitation on that which we consider to be cruel and unusual. The criticism is that this is approach standardless and results-oriented.

I should add that there are two broad arguments made about law in general. One is that predictability in judicial interpretation is the foremost value. A person who cannot predict what the law will be is subject to tyranny. Better an ossified 18th century interpretation that we can predict than an unpredictable subjective 21st century interpretation. This is often called favoring "bright line" rules. The criticism is that this is just arbitrariness. The competing view is that we should not have bright line rules, but standards. A bright line rule is one that says "the speed limit is 55 mph." All speed rules are like that now. A standard is "speed must be reasonable." Until the 1970s, most speed rules were like that. Our laws mix standards and bright line rules all the time. Standards allow for evolution and interpretation, but eschew easy predictability.

These issues bear on proposition 8 in many ways. The text of prop 8 says that only a marriage between a man and a woman is valid. Thus, a plain textual interpretation means that any gay marriage, even if validly entered into beforehand, is now void. An originalist interpretation would be that it was clearly intended to re-establish the pre-2008 law banning gay marriage. However, the canons of interpretation state that a law shall not be retroactive unless it is clearly intended to be so. This argument can go either way. I think that prop 8 does not say it is meant to be retroactive, which it could have said.

A structuralist would say that that applying prop 8 to annul existing marriages is a violation of the separation of powers. Divorce and annulment are within the province of the judiciary, not the legislature. Also, it is a violation of due process for the same reason. A "living constitution" is what the court embraced in declaring gay marriage legal in the first place. It reasoned that we now stand at a place where it is impossible to see discrimination against gays as fair or just. Jerry Brown's argument is largely structuralist.


Raised By Republicans said...

So which of these approaches to constitutional interpretation is likely to dominate at each stage?

Dr. Strangelove said...

This is fascinating--such a nice little primer. I see now how often I have confused these approaches, or blurred them together. Am I right in guessing that most constitutional scholars would not follow a single school? For example, it seems that textualism and structuralism are difficult to separate, as form and content often run together.

The Law Talking Guy said...

These schools flow from overall theories and political philosophies, of course. A postmodernist who believes texts to be inherently meaningless has a different approach than someone who believes in natural law.

RBR- I don't understand your question. Stage of what?

Dr. Strangelove said...

Incidentally, the SF Chronicle reports that this is the first time the CA Attorney General has refused to defend a voter-enacted law since 1964. Prop 14, passed by 65% in 1964, would have overturned fair housing laws and would have permitted racial discrimination in real estate and housing.

Spotted Handfish said...

Can I ask a question which may be similar to RBR's one: what is the current leaning of the Supreme Court of California? I would assume they would be "living constitution"alists, given the previous decision. Given they are getting a structuralist argument, does that mean they are likely to lean towards a structuralist interpretation? (My inexpert reading was that they are most similar.)

In general, as there are a multitude of interpretive stances I would assume the leaning is towards whatever approach suits the current court make-up regardless of precedent. I know precedent is important, but the argument I'm thinking of, by way of analogy, is similar to RBR's arguments on gerrymandering whereby a particular structure is simply bias.

The Law Talking Guy said...

SH- debates rage unanswerable as to whether these interpretive doctrines actually matter or are employed merely in an instrumental fashion. I happen to believe they often matter where the issues are not of great political salience, although a cynic would insist they never do.

The California Supreme Court consists primarily of conservatives who would never ascribe to a living constitution theory openly. They would argue that the text of the constitution must be interpreted to protect gays because we now understand that to be the plain meaning of the text, although the authors of the text would not have believed it.

Please keep in mind that my discussion is a quick shorthand for volumes of argumentation about the proper role of the courts. Most jurists want to believe that the courts are not merely a political branch possessed of the self-delusion of being rational and objective. Some embrace the brazenly majoritarian quality of some Supreme Court decisions as very appropriate.

I think doctrines matter because I don't think you can understand constitutional history without them. The iron test obviously would be some case where power and interests would dictate one result, but doctrines another, and doctrine won. I am not sure I can find such a case at law easily. Perhaps there is none. On the other hand, you can find many cases where doctrine matters and politics are hard to detect.

John Lofton, Recovering Republican said...

We, too, are interested in the Constitution and hope you'll visit us and comment.

John Lofton, Editor

Anonymous said...

I'm curious to find out what blog system you have been utilizing? I'm having
some small security issues with my latest website and I'd like to find something more risk-free. Do you have any recommendations?

Feel free to surf to my homepage - Louis Vuitton Bags

Anonymous said...

I do not know if it's just me or if everyone else encountering issues with your blog. It appears as if some of the written text within your posts are running off the screen. Can somebody else please comment and let me know if this is happening to them too? This might be a problem with my web browser because I've had this happen previously.

Appreciate it

My web page - Air Jordan 2013

Anonymous said...

Woah! I'm really enjoying the template/theme of this site. It's simple,
yet effective. A lot of times it's challenging to get that "perfect balance" between superb usability and visual appearance. I must say that you've
done a excellent job with this. Additionally, the blog
loads super fast for me on Opera. Superb Blog!

Look into my web page ... Air Max Pas Cher

Anonymous said...

I delight in, cause I found exactly what I was having a look for.
You have ended my 4 day long hunt! God Bless you man. Have a great day.

Also visit my homepage - Air Max 90

Anonymous said...

I am actually pleased to glance at this website posts which includes tons of useful facts, thanks for providing these information.

My webpage;

Anonymous said...

It's an remarkable paragraph in favor of all the online viewers; they will get benefit from it I am sure.

Feel free to surf to my weblog: Air Max

Anonymous said...

I am really impressed with your writing skills as well as
with the layout on your blog. Is this a paid theme or did you customize it yourself?
Anyway keep up the nice quality writing, it is rare
to see a nice blog like this one nowadays.

my weblog Air Max

Anonymous said...

Great web site you have here.. It's difficult to find good quality writing like yours these days. I honestly appreciate individuals like you! Take care!!

My web site - Abercrombie Brussel

Anonymous said...

It is actually a great and helpful piece of information.

I'm satisfied that you just shared this useful info with us. Please keep us up to date like this. Thank you for sharing.

Feel free to surf to my blog Cheap NFL Jerseys

Anonymous said...

You should be a part of a contest for one of the highest quality websites online.
I most certainly will highly recommend this site!

Feel free to surf to my webpage :: Gucci Borse

Anonymous said...

Everything is very open with a precise clarification of the issues.
It was truly informative. Your website is very helpful.
Many thanks for sharing!

My web site :: Converse

Anonymous said...

Hmm is anyone else having problems with the pictures on this blog
loading? I'm trying to determine if its a problem on my end or if it's the blog.
Any feed-back would be greatly appreciated.

Also visit my blog ... Home Page

Anonymous said...

Good post. I learn something new and challenging on sites I stumbleupon every
day. It's always interesting to read articles from other writers and practice something from other sites.

Here is my blog: Home Page

Anonymous said...

Thanks for sharing your thoughts about nickel. Regards

Look into my homepage; Go Here

Anonymous said...

Every weekend i used to go to see this web page, because i wish for enjoyment, for the reason that this this website conations genuinely fastidious funny information too.

my blog post :: bankruptcy attorney florida

Anonymous said...

Hello there! I know this is kind of off topic but I was wondering if you knew where I could get a captcha plugin for my
comment form? I'm using the same blog platform as yours and I'm having difficulty
finding one? Thanks a lot!

My blog post Basket Air Jordan

Anonymous said...

You really make it appear so easy along with your presentation however I in finding this matter to be actually something that I believe
I'd by no means understand. It seems too complex and extremely vast for me. I'm looking forward to your next post, I'll attempt to get the grasp of it!

my blog Louis Vuitton Pas Cher

Anonymous said...

I'm now not positive the place you are getting your info, however good topic. I must spend a while learning more or working out more. Thank you for fantastic info I was in search of this information for my mission.

Here is my weblog - Air Jordan

Anonymous said...

It's remarkable to go to see this web page and reading the views of all friends on the topic of this paragraph, while I am also eager of getting know-how.

my blog; source

Anonymous said...

magnificent submit, very informative. I wonder why the opposite experts of this sector do not
understand this. You should proceed your writing.
I'm confident, you have a huge readers' base already!

Here is my webpage: Cheap Louis Vuitton Handbags

Anonymous said...

There's certainly a lot to know about this subject. I love all the points you made.

my web site - Solde Air Max

Anonymous said...

Good article. I definitely appreciate this website.
Stick with it!

Also visit my webpage ... Cheap NFL Jerseys

Anonymous said...

Wow that was strange. I just wrote an very long comment but after
I clicked submit my comment didn't appear. Grrrr... well I'm not writing all that
over again. Anyway, just wanted to say superb blog!

Check out my site; Abercrombie Paris

Anonymous said...

Excellent blog here! Also your web site loads up very fast!
What host are you using? Can I get your affiliate link
to your host? I wish my web site loaded up as quickly as yours lol

Feel free to surf to my webpage; Oakley Holbrook

Anonymous said...

After exploring a number of the blog articles on your web site, I honestly appreciate your technique of blogging.

I saved as a favorite it to my bookmark website list and will
be checking back soon. Please check out my web site too and tell
me how you feel.

Also visit my page - Tory Burch Shoes - -

Anonymous said...

I don't even understand how I ended up here, however I assumed this put up was great. I don't know who you are however certainly
you're going to a well-known blogger when you aren't
already. Cheers!

My site ... LeBron James 9

Anonymous said...

I am truly grateful to the holder of this website who
has shared this impressive article at at this place.

Here is my page; Nike Air Jordan **

Anonymous said...

Pretty section of content. I just stumbled upon your weblog and in accession capital to assert that I
acquire actually enjoyed account your blog posts. Any way I will be subscribing to your augment and
even I achievement you access consistently rapidly.

Feel free to visit my web-site; Sac a main Guess

Anonymous said...

hello!,I love your writing so a lot! percentage we
keep in touch more about your post on AOL? I need an expert on this house to unravel my problem.
Maybe that is you! Having a look ahead to peer you.

Also visit my weblog - Recommended Reading

Anonymous said...

This is the perfect website for anyone who wants to understand this topic.

You realize so much its almost tough to argue with you (not that I personally would want to…HaHa).

You definitely put a brand new spin on a subject that's been written about for many years. Great stuff, just great!

Here is my weblog: Chaussures De Foot Pas Cher (

Anonymous said...

I savor, lead to I found just what I used to be taking a look for.

You have ended my 4 day lengthy hunt! God Bless you man.
Have a great day. Bye

Stop by my blog post - Kobe 8 Shoes

Anonymous said...

I have to thank you for the efforts you've put in writing this blog. I'm hoping to view the same high-grade content from
you later on as well. In fact, your creative writing abilities has encouraged me to
get my own site now ;)

Look at my site - Sac A Main Louis Vuitton (

Anonymous said...

Thanks a bunch for sharing this with all people you
really recognise what you are talking about!
Bookmarked. Kindly also talk over with my website =).
We may have a link alternate agreement between us

Here is my web-site Air Jordan