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.