There are multiple methods for interpreting the US Constitution

J. Bradley Klepper
Attorney at Law

Throughout the course of these columns, I have discussed the U.S. Constitution, the Bill of Rights (amendments 1-10) and the additional amendments. Ever since I memorized the Preamble to the Constitution (big shout-out here to Saturday mornings and the “Schoolhouse Rock” preamble song!), the document has always fascinated me.

I mean, the U.S. Constitution, including the signatures, only contains 4,543 words and is only four pages long. It is the shortest written constitution of any major government in the world. Yet the Constitution, and all the amendments, have shaped our democracy and influence every aspect of our society. How can you not be fascinated by this?

However, as amazing as the Constitution is, it is still over 200 years old, and we are often faced with the question of how to interpret the words that were written so long ago.

Well, that my friends, is why we are here today. There are several different “methods” of interpretation.

I get that most people don’t really care about the different methods of interpretations of the Constitution, or maybe they have just not given it much thought. However, judges care — tremendously. And the “school of thought” to which judges subscribe can greatly impact their decisions, which can impact your rights.

With that in mind, I’d like to mention a few methods of Constitutional interpretation. Of course, I am only going to hit the highlights, so hold off on the hateful emails.

The first method is called textualism. Textualism focuses on the plain meaning of a text, in this case, the Constitution. Textualists believe there is an objective meaning to the text and generally do not inquire about the intent of the writer. Those that subscribe to this theory believe the courts should simply stick to the Constitution. Considering anything other than the plain meaning of the text is judicial activism.

Of course, as with any method of interpretation, this could lead to “different” results. As an illustration, in a dissent, former Supreme Court Justice Antonin Scalia noted that the language of a statute increased the penalty involved in a drug trafficking crime. However, in the facts of the case, the defendant was trading an unloaded gun for cocaine. The majority took a textualist view and held that since a gun was involved, the enhanced penalty was in play. Justice Scalia disagreed and said that “uses a gun” as contained in the statute means that the gun needs to be used for what a gun is normally used for — as a weapon.

The second method of interpretation is called originalism, or original meaning. While textualism focuses solely on the text, originalism considers the meaning of the Constitution as understood by some segment of the population the time of ratification. However, originalists generally agree that the Constitution’s text has an identifiable meaning at the time of ratification, and it is the task of judges to construct this original meaning.

The Scalia illustration I mentioned before is an example of originalism, even though it is applied to a statute and not the constitution.

The third method of interpretation is judicial precedent. This is the most commonly cited source of determining constitutional meaning. Judicial precedent provides guidance on future cases based on prior decisions made with similar facts. While the courts rely on judicial precedent, they also have a lot of latitude on whether they interpret prior decisions broadly or narrowly.

Another method of interpretation is pragmatism. In contrast with textualists and originalists, pragmatists focus on the likely consequences of a particular interpretation. In other words, pragmatism considers the future costs and benefits of a particular interpretation to society or other branches of government.

An example of a pragmatist approach is The United States v. Leon. In this case, the Supreme Court held that the Fourth Amendment does not require a court to exclude evidence obtained as a result of law enforcement’s good faith reliance on an improperly issued search warrant. In support of its decision, the Court noted that the adoption of a broader exclusionary rule would undermine the ability of the criminal justice system to obtain convictions of guilty defendants.

Of course, there are additional methods of interpretation. These include moral reasoning, structuralism, national identity and historical practices. Because I am lazy — and also don’t have enough space — I will save the discussion of these methods for another time.

Until then, think about how you believe the Constitution should be interpreted, and which method you think is best. Worst-case scenario: You will have something to think about late at night. Best-case scenario: You can now use the phrase, “You know, when it comes to constitutional interpretation, I am a (insert preferred method here).” If you are like me, it will make you sound smarter than you really are — which is never a bad thing.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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