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Constitutional Interpretation

The Constitution emerged after several months of debate in 1787, during which the Founders sought to "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty." Several centuries have passed since the Constitution was formed, and in the intervening time, multiple questions and debates have arisen over its meaning and interpretation.

There are two main categories of constitutional interpretation: Originalism and Non-Originalism. These two categories are admittedly broad. But in general terms, the first seeks to interpret the Constitution by looking closely at the text, the influencing documents and the historical context in which it was written. The second looks at the Constitution as a living document the interpretation of which needs to take into account changes in social norms, economic and political circumstances.

According to one proponent, Originalism "means that the constant touchstone of constitutional law should be the purposes and values of those who had the authority to make the Constitution—not of those who are charged with governing under it and abiding by it." An oft-cited variation of Originalism is Strict Constructionism, which focuses interpretation on the technical, exact meaning of the words in the Constitution. Past and present examples of justices who hold the Originalist view include Justice Hugo Black, Justice Antonin Scalia, Justice Clarence Thomas, and Judge Robert Bork.

Non-Originalism, on the other hand, is sometimes referred to as Loose Constructionism or Pragmatism, and its proponents often support the idea of a "'living constitution' … [which] evolves, changes over time, and adapts to new circumstances." Past and present examples of justices who hold this view include Justice Harry Blackmun, Justice William Brennan, Justice William O. Douglas, and Judge Richard Posner. 

The first debates over proper constitutional interpretation arose among the Founders themselves. In 1788, while the Constitution was awaiting ratification, Alexander Hamilton stated that the interpretation of the Constitution was to be left in the hands of the courts. Nearly 30 years later, James Madison noted the bias that was possible in interpreting the Constitution, both for those present during its formation, like himself, and for those removed from the process, but eager "to find in its text an authority for a particular measure of great apparent Utility." Finally, Thomas Jefferson weighed in on constitutional interpretation methods with the following statement:

"On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

In the years following the Founding generation, the courts and other constitutional scholars continued to approach constitutional interpretation with caution. For example, Joseph Story's Commentaries on the Constitution suggested that Americans interpret the Constitution in a straightforward, rational manner while cautiously appealing to the Founders' contemporary context in matters lacking clarity. Additionally, court cases such as Pollack v. Farmers’ Loan and Trust Co. (1895), South Carolina v. United States (1905), and Ex Parte Grossman (1925) all cited the need to look into the historical circumstances surrounding the Founding Fathers in order to make accurate judgments.

However, as the 20th century advanced, the idea that the Constitution needed to be interpreted in light of the nation's changing times and circumstances began to take precedence in the Court system. Chief Justice Earl Warren put this concept into words in 1958 when he stated, "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Justice William Brennan championed this idea as well by declaring that it was "arrogance" to say that modern justices could know what the Founders intended, therefore the Constitution should be interpreted according to the changing ideas of different generations. In the eyes of current Supreme Court Justice Elena Kagan, this type of constitutional interpretation demanded that "the courts show a special solicitude for the despised and disadvantaged."

Due to these developments in the judicial review process, the types of judges nominated to the court system are increasingly scrutinized concerning their constitutional viewpoints. Unfortunately, Originalist vs. Non-Originalist constitutional interpretation has come to be viewed largely along ideological lines, with Conservatives generally advocating for an Originalist position and Progressives advocating for a Non-Originalist position.

The material in this topic traces the historical methods of constitutional interpretation from the era of the Founding to the present. It examines the various forms of constitutional interpretation today while also presenting the arguments for and against each one.

 

Constitutional Interpretation Study Guide 

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Commentary or Blog Post

This article is a commentary on judicial activism, judicial deference, and the tension between these two theories of judicial authority.  The author explores the pros and cons of judicial deference and judicial activism, and concludes that judges must be careful of...

Spalding traces the roots of American progressives to German thinkers who believed in the "Administrative State." Here, government is controlled by administrators and "experts," rather than officials elected to represent the people. Spalding also notes that the Founders and the progressives differed in their view of the Constitution. Progressives believed in a "...

"This paper highlights several of the key arguments offered by the challengers and several supporting amici exploring the original, Founding-era understanding of the Commerce Clause and the Necessary and Proper Clause—the two constitutional provisions that the government contends authorize the Affordable Care Act and its mandate. Taken together, these briefs provide the Court with a succinct...

"With 12 years under his belt as lecturer and senior lecturer at the estimable University of Chicago Law School, President Barack Obama is no stranger to the Constitution. Nonetheless, he accepts the fashionable yet flawed notion of a malleable, 'living' document, which has sufficient structural flexibility to accommodate rapidly changing social, economic, and technological conditions. Obama’s...

"The term 'living constitution' doesn't poll well. That's what Constitutional Accountability Center (CAC) president and founder Doug Kendall told participants in a teleforum sponsored by the American Association of University Women. Kendall, a self-described progressive, was explaining why other progressives need to replace the 'living constitutional method' with something new. That something...

"Constitutional law is supposed to be different from other types of law. But the Obamacare litigation headed to the Supreme Court shows that liberal interpreters of the Constitution have forgotten the distinction.

In common law, intended to maintain the continuity of legitimate expectations, later rulings carry more precedential weight than earlier rulings. Similarly, later legislation...

"If confirmed by the Senate as deputy attorney general, Ogden would be placed in a position of great influence over the policy of the Department of Justice, second only to the attorney general, whom he would 'advise and assist ... in formulating and implementing Department policies and programs.' Accordingly, Ogden will have a major hand in counterterrorism policy, enforcement priorities,...

"It has been years since the Constitution has had any meaningful impact on what is done in Washington. True, no one challenges the structural provisions — there are a hundred senators, presidential elections are held every four years, etc. And there are lots of court battles over application of the Bill of Rights, largely because it protects some liberties favored by the Left.

But most...

This school lesson plan includes a section on separation of powers but goes on to ask students, "How is the Constitution a living document?"

"The context for understanding contemporary political debates regarding judicial power is provided by a proper account of the theory and history of judicial review. Judicial review is not the limited power now that it was in 1789; it has been transformed into something new and completely different. It is impossible to understand current debates -- such as bitterly contested judicial...

"The House votes Friday on a constitutional amendment to balance the budget, and members of both parties say they support one. But a dispute over which version of the amendment should pass could doom the whole effort."

"The two key arguments against bothering with constitutional restraints on government are 'who knows' and 'who cares': we can’t know what the Constitution means, and we shouldn’t care even if we did."

"As the Supreme Court's current term concludes, public opinion is evenly divided about how the justices should interpret the Constitution when determining their rulings. Half of Americans (50%) say the Court's rulings should be based on its understanding of what the U.S. Constitution means in current times, while about as many (45%) say rulings should be based on its understanding of what the...

"This is much more than a book: it is a confrontation. It consists of a lecture on constitutional interpretation delivered at Princeton University by Justice Scalia of the Supreme Court; comments on the lecture by Gordon Wood, Lawrence Tribe, Mary Ann Glendon, and Ronald Dworkin; and replies by Scalia to his critics. The exchange between Scalia, on the one hand, and Dworkin, on the other,...

"The framers of a constitution who want to make it a charter of liberties and not just a set of constitutive rules face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, thereby allowing substantial discretion to the authoritative interpreters, who in our system are the judges. The U.S. Constitution...

"To most conservatives, constitutional interpretation is straightforward. The judge's task is to understand the Constitution as intended by its authors. A judge must not anachronistically impose his own social philosophy on the document; and the principal complaint against 'liberal' judges is that they commit this sin. Notoriously, for example, the Warren Court preferred its understanding of...

"Do the Federal courts have a monopoly of the interpretation of the Constitution? Further, are the judges, in the words of Thomas Jefferson, 'the ultimate arbiters of all constitutional questions . . .' There is little reason to doubt that the prevailing view in the country would give a resounding affirmative answer to the first question. There are dissenters, of course, but so far as they are...

Some liberals complain that while the conservatives have strong representation in Scalia, Thomas, Alito, and Roberts on the Court, there are no true liberals on the Supreme Court.  This article gives background on the political makeup of the Supreme Court. Elena Kagan's nomination is discussed, especially in the context of how she may not be liberal enough for some liberals....

"Farber and Sherry reject the whole foundationalist enterprise of these writers. Instead, constitutional interpretation should be pragmatic, taking into account a wide range of factors that cannot be fully set forward in a deductive system. In accord with their own method, they do not offer a 'knockdown' deductive argument against grand theory."

"For over a century after its signing in September 1787, the United States Constitution was upheld by a citizenry which, by and large, appreciated it both in letter and spirit, and sought to live according to its ideal of limited government protecting individual rights.

But toward the end of the nineteenth century, and especially since the 1930′s, more and more Americans began to accept...

"As Jaffa sees matters, many alleged conservatives misunderstand original intent. They attack liberal Supreme Court Justices such as William Brennan for reading into the Constitution their own value judgments. Instead, they urge, judges should confine themselves to the text as meant by its Framers.

To Jaffa, this conservative approach, like the view it ostensibly opposes, is a variety...

"Seven years before Barack Obama's 'spread the wealth' comment to Joe the Plumber became a GOP campaign theme, the Democratic presidential candidate said in a radio interview the U.S. has suffered from a fundamentally flawed Constitution that does not mandate or allow for redistribution of wealth."

"The case for a strict interpretation of the Constitution is not dependent on a shared judgment that the Framers got everything right, either for their generation or ours, even though their political values and judgement were extraordinarily good. The primary case for a strict interpretation of the Constitution is to force the demands for constitutional change through the Article V processes...

"Richard Epstein has in How Progressives Rewrote the Constitution defied the current scholarly consensus. Contempt for Lochner-era jurisprudence stems from a carefully orchestrated campaign waged by the Progressives. This group of self-proclaimed scientific reformers contended that changed economic conditions made 'freedom of contract' and other shibboleths of the laissez-faire era...

"Constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since...

"Mr. Tushnet thinks the Court is insufficiently leftist. The Court has, in recent years, limited affirmative action programs and declined to consider welfare benefits as rights. What is to be done?

Our author responds by throwing into question the supremacy of the Court as an interpreter of our basic law. Why need those who differ with the Court's interpretations accede to them? Indeed...

"Two recent interviews with two prominent liberal figures help cast some revealing light on modern liberalism's attitude toward the Constitution."

"Writing lately on the Fourth Amendment, Professor Thomas Y. Davies decries the 'originalism' practiced by certain Supreme Court justices and sundry legal commentators. On historical-hermeneutic grounds, he faults face-value originalism for missing 'the shared, implicit assumptions that informed the public meaning' on which a given constitutional provision rested. Underlying the Fourth...

"All Americans should take pride in seeing our first Hispanic Supreme Court justice (not counting Benjamin Cardozo). While this moment should have belonged to Miguel Estrada—who was denied even a vote by an unprecedented Democratic filibuster—we should nevertheless celebrate Sonia Sotomayor's rise from very humble beginnings to reach the highest court in the land. Although her selection...

Roger Pilon suggests that "politics has trumped law", creating an environment where value judgments instead of legal judgments, are made by judges.  Pilon also discusses Elena Kagan's nomination to the Supreme Court, how she will be asked about her "conception of the law" and the underlying questions about her political ideology and values.  Pilon criticizes some of Kagan's...

"We Americans find ourselves faced with the disquieting specter of a five trillion dollar national debt, a sum truly inconceivable. Many economists and politicians tell us this debt portends a disastrous financial collapse in the future and we worry. Once debt free, we are now the largest debtor nation in the world and as we find ourselves on the precipice we are...

"September 27 marks the anniversary of the publication of the first of the Antifederalist Papers in 1789. The Antifederalists were opponents of ratifying the US Constitution. They feared that it would create an overbearing central government, while the Constitution's proponents promised that this would not happen. As the losers in that debate, they are...

"The incoming Republican House majority intends to require that all legislation cite specific constitutional authority. Tea party activists are calling themselves constitutional conservatives. A federal judge ruled Obamacare to be unconstitutional.

Many in Washington are worried. The idea that the Constitution is relevant to the operation of the federal government is a frightening...

"As we approach the bicentennial of the ratification of the Constitution, Americans face what many regard as a constitutional crisis. A resolution calling for a constitutional convention to limit the spending powers of government has been approved by thirty-one out of a required thirty-four states. Over two hundred other constitutional amendments, many of them dealing with economic issues,...

"Numerous lawmakers embrace a discredited theory of the Constitution that would not only end Medicare outright but also cause countless other cherished programs to be declared unconstitutional. Under this theory, Pell Grants, federal student loans, food stamps, federal disaster relief, Medicaid, income assistance for the poor, and even Social Security must all be eliminated as offensive to the...

"Although it is readily apparent that conservatism is united in its principled hostility to modern Progressive Liberalism, it is often more difficult to pin down just what the movement stands for. Johnathan O’Neill suggests that a focus on defending and preserving the Constitution could unite the otherwise fractious conservative movement. In this spirit, he examines four early conservative...

"No doubt all the Founders were concerned about their own finances as well as those of the nation. But in writing the Constitution, they were above all trying to apply principles of natural rights and limited government to create a durable nation that would be a bastion of freedom in an unfree world. James Madison and other Founders diligently studied ancient and modern republics to learn from...

Debate participants discuss Elena Kagan's nomination to the Supreme Court.  They discuss Kagan's experience, her lack of a "paper trail," what she might bring to the Supreme Court, her views on legal interpretation, and whether she will be a successful candidate to the Supreme Court.

"The framers of the Constitution viewed themselves as occupants of a unique position. They were designing a government from scratch: unlike previous governments, their product, if rightly designed, would not be the passive result of force and chance. Matters in Mr. Smith's tale now get more complicated. Although man is a being endowed with reason, most men, at least most of the time, are not...

"America’s Founders believed that creation of the Constitution signaled acceptance of the belief that men could create their governments from what Alexander Hamilton called 'reflection and choice' and not be doomed to whatever fate may bring as a result of 'accident and force.' At the heart of this idea is the further confidence that language, as John Locke said, 'is the great instrument and...

"Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution--the supreme law of the land--as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a 'living document' with no fixed meaning, subject to...

"American government under the Constitution was supposedly meant to work as follows: Congress, staying within delegated powers and the Bill of Rights, passes laws; the president executes the laws; and the courts sort out ensuing wrangles. This plan ran aground rather early—the 1798 Alien and Sedition Acts, for example—which raises at least two possibilities: 1) The Federalist movement...

"What are appropriate sources of authority to guide interpretation of the Constitution and what relative weight should be assigned to the various appropriate sources?

There are five basic sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in...

"There's no shortcut to a free society. I find myself repeating this because looking for shortcuts is tempting, and thinking is easily overtaken by wishful thinking.

A shortcut favored by most advocates of limited government is restoration of the Constitution. If only we could get back to the Constitution as it was written, people say. It’s a sincere wish, but as a path to a free...

"In the Federalist Papers, Alexander Hamilton referred to the judiciary as the least dangerous branch of government, stating that judges under the Constitution would possess 'neither force nor will, but merely judgment.' Yet recently, the courts have wielded great power, directing the President on questions as monumental as how to conduct war, and micromanaging the states concerning even the...

Contributors give their opinion on the difference, if any, Elena Kagan will make as a Supreme Court justice if confirmed. Some argue that little will change, since she is a liberal replacing a liberal judge. Others hypothesize that she will be a pragmatic voice that will look for viable compromises and consensus. Yet others opine that she will be a strong liberal voice, possibly even...

"The verdict in Gonzales v. Raich last week was a stunning victory for federal power, and it came with an unusual endorsement. The Court upheld Drug Enforcement Agency prosecution of sick women who use medical marijuana to treat symptoms of their illnesses. Siding with the DEA, six justices held that the Commerce Clause of the U.S. Constitution (which gives the...

"The question in the title is not like Who’s buried in Grant’s tomb? The answer isn’t the National Archives. I mean the real constitution — the set of attitudes that reflect what American people will accept as legitimate actions by the people in government. Those tacit rules are the real constitution, not a piece of parchment behind glass somewhere or a booklet in someone's pocket. This real...

"When he condemned the Supreme Court's decision in Scott v. Sanford – the notorious Dred Scott case – during his second debate with John Kerry, President Bush offered that case as an example of the dangers of appointing judges who are not 'strict constructionists.' But in fact, it is just the opposite. It is history's most infamous example of the shortcomings of the very judicial...

Chart or Graph

This graph shows the conservative voting rate of Supreme Court Justices during their tenure in the Supreme Court.  The graph also shows which president appointed each justice.

This chart breaks down several of the constitutional interpretation views generally used in the court system.

"Few issues are as politically or ideologically divisive as how the Constitution should be interpreted. In the Pew Research Center's political typology survey, released May 4, 70% of Republicans said the Supreme Court should base its rulings on its understanding of the Constitution as originally written; 65% of Democrats said the Court should base its rulings on what the Constitution means...

"Younger Americans are more likely than older Americans to say the Court should interpret the Constitution based on its meaning in current times (62% of 18-29 year olds say this, compared with just 35% of those age 65 and older). And college graduates are more likely than others to say the interpretation should be based on the Constitution's modern-day meaning (57% say this, compared with 49%...

Analysis Report White Paper

"If ever a theory had a stake driven through its heart, it seems to be originalism. My purpose at this juncture is not to rehearse in detail the arguments against originalism or the responses of originalists to them. My purpose is merely to restate the consensus about how the debate came out as a prelude to making what for many will be a startling claim: Originalism has not only survived the...

"The context for understanding contemporary political debates regarding judicial power is provided by a proper account of the theory and history of judicial review. Judicial review is not the limited power now that it was in 1789; it has been transformed into something new and completely different. It is impossible to understand current debates—such as bitterly contested judicial nominations...

"The argument that original meaning should guide constitutional interpretation is nearly as old as the Constitution itself. Before there were strict constructionists, before there were judicial activists, there were originalists. In those early days, few seriously objected to the notion that the Constitution should be read in accord with its original meaning, though there were plenty of...

Posner argues that the majority decision in Heller is an example of "faux originalism," as Posner's analysis resulted in a different outcome to the case using originalism.  Posner concludes that "true originalism licenses loose construction.  And loose interpretation is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing...

Louis Fischer discusses the concept of judicial supremacy, the idea that the Supreme Court has the last word in constitutional interpretation.  He explores the growing debate on the subject, including arguments from those who believe that judges do have the final say on constitutional meaning, as well as from those who believe that judges do not have the final say on constitutional...

"In this article, the authors assess various influences on U.S. Supreme Court justices' behavior in cases involving judicial review of federal, state, and local statutes. Focusing on challenges to the constitutionality of statutes considered by the Burger and Rehnquist Courts during the 1960 to 2000 terms, the authors evaluate the impact of attitudinal, institutional, and contextual variables...

"What does it mean to read this Constitution? What is it that we do when we interpret it? Why is there so much controversy over how it should be interpreted — and why is so much of that controversy, these days in particular, not limited to the academy or to the profession, but so public that it makes the evening news and the front pages?"

"This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U.S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, earlier American public debate, and...

"In reviewing a term of the Court, it is important to take a moment and reflect upon the proper role of the Supreme Court in our constitutional system. The intended role of the judiciary generally and the Supreme Court in particular was to serve as the 'bulwarks of a limited constitution.' The judges, the Founders believed, would not fail to regard the Constitution as 'fundamental law' and...

This publication outlines the debate surrounding constitutional interpretation involving speeches by Attorney General Edwin Meese, Justice William J. Brennan, Justice John Stevens, Judge Robert Bork, and President Ronald Reagan.  The debate was initiated by Edwin Meese, who favored interpreting the Constitution using original intent.  Justice Brennan, on the other hand, espoused...

"Abstract: Liberals are currently engaged in a concerted effort to redefine judicial activism. Rather than accepting the true definition of judicial activism—when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution—liberals now apply the term anytime a statute is struck down or when a court delivers an...

"When interpreting the Constitution, judges and commentators often invoke the 'original intent of the framers' in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution's drafters and early interpreters. In the Article, Professor Powell examines the historical validity of the claim that the...

"Sometimes, although rarely, the words of the Constitution appear to speak for themselves. In such circumstances the Constitution does not seem to require interpretation. Article I, Section 3, Clause 1 of the Constitution, for example, states that 'the senate of the United States shall be composed of two Senators from each State.' If a third California Senator should one day present herself...

"There’s a way that we academics talk about constitutional interpretation that suggests it to be more than it turns out to be. We speak of it as if the Court decides cases through elaborate (sometimes more, sometimes less) chains of reasoning. As if it were a Socratic dialog, with the author inviting the reader to the seven steps necessary to see why the conclusion follows.

But...

"In the Federalist Papers, Alexander Hamilton referred to the judiciary as the least dangerous branch of government, stating that judges under the Constitution would possess 'neither force nor will, but merely judgment.' Yet recently, the courts have wielded great power, directing the President on questions as monumental as how to conduct war, and micromanaging the states concerning even the...

Video/Podcast/Media

Shapiro reports on the different views of constitutional interpretation, especially originalism, perceived as a conservative theory of interpretation, and the opposing idea of a "living constitution" usually connected to progressives.  Posner expresses a third view that interpretative theories hide the fact that the Supreme Court Justices are political actors, on the left...

This panel discussion sponsored by The Federalist society discusses the development of originalism.  They discuss the different theories within originalism to interpret the Constitution and the disagreements that occur between originalists. 

"U.S. Supreme Court Justice Stephen Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption."

"Sheldon Richman lectures to students attending History and Liberty in Midland, MI in July of 2009."

"Libertarian, Michael Badnarik teaches a class on the Constitution. If you like Ron Paul and follow his message of freedom, this is a MUST WATCH!!! Most of what you think you know about the United States is wrong. Think you own your Car? Think its your money? Why do we have to register your car and get plates? Think you own Your property? He explains the differences between rights and...

This clip records a radio interview segment with Barack Obama in which he stated that the Constitution was flawed.

"Edwin Vieira, Jr. - four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School) - discusses original intent and living document interpretations of the Constitution of the United States of America from the documentary 'FIAT EMPIRE - Why the Federal Reserve Violates the U.S. Constitution.'"

This debate, sponsored by the Federalist Society, focuses on the meaning and differences between Constitutional Interpretation and Constitutional Construction in the context of originalism. The video above is part one; click the link to access the listing of all segments. Here are parts...

Senator Tom Coburn questions Kagan's view of the Constitution in day 3 of her Judiciary Committee confirmation hearing.

This video features a panel of speakers discussing the various methods of Constitutional interpretation used in the past and today.

This short clip finds current Supreme Court Justice Sonia Sotomayor stating that the "Court of Appeals is where policy is made."

"Judge Sonia Sotomayor delivers her opening statement during the first day of her confirmation hearing in the Senate Judiciary Committee. Once confirmed, Sotomayor would be the first Hispanic and third woman to serve on the United State Supreme Court."

"A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation with Associate Justice Stephen Breyer and Associate Justice Antonin Scalia. Moderated by ABC News Legal Correspondent Jan Crawford Greenburg."

"We ask moms on the street what they know about the Constitution. Can you answer the questions? Does it matter?"

"We often hear much about the perils of judicial activism and how a judge's proper role is as interpreter of law, not maker of law. However, in a world where much binding precedent has been decided on grounds other than original intent, this restrained view of the judiciary is sometimes thought to stand often in stark contrast with the originalist movement. Originalists have had two ways of...

"U.S. Supreme Court Justice Antonin Scalia rejects the judicial notion of a 'living' Constitution that can be interpreted to account for social changes in American society, an idea he describes as 'unfortunate.' 'The Constitution that I interpret and apply is not living, but dead,' says Scalia."

"Chief Justice John Roberts spoke about the history, meaning, and provisions of the U.S. Constitution, as well as the operation of government within the parameters set forth in the U.S. Constitution. Video footage highlighted the operation of the legislative, executive and judicial branches of government by providing footage of several recent events and activities such as presidential...

Primary Document

"Supreme Court Justice Antonin Scalia, in a speech before The Catholic University of America, advocates literal interpretation of the Constitution, declaring '[t]he words are the law.'"

This satirical piece mocks Franklin Roosevelt's New Deal by creating a "New Constitution" consistent with FDR's policies.

"What is the frame of government under which we live?

The answer must be: 'The Constitution of the United States.' That Constitution consists of the original, framed in 1787, (and under which the present government first went into operation,) and twelve subsequently framed amendments, the first ten of which were framed in 1789."

"In compliance with a custom as old as the Government itself, I appear before you to address you briefly and to take in your presence the oath prescribed by the Constitution of the United States to be taken by the President 'before he enters on the execution of this office.'"

"There is no more interesting figure before the American public to-day than Charles Evans Hughes, Governor of New York. His sudden rise into political prominence is one of the most hopeful and significant signs of the great moral awakening now in progress in the United States. ... Believing that Mr. Hughes's views should be better known, The Independent arranged for the publication of...

"In his piercing introduction to An Economic Interpretation the author wrote that 'whoever leaves economic pressures out of history or out of discussion of public questions is in mortal peril of substituting mythology for reality.' It was Beard's view that the founding fathers, especially Madison, Jay, and Hamilton, never made such a miscalculation. Indeed, these statesmen placed...

A four part interview in which Al Gore discusses issues of constitutional interpretation, economic issues, and foreign policy.

"I have received your resolution of the 15th instant, requesting me 'to inform the Senate whether the provisions of the act entitled 'An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers, passed the 30th of March, 1802, have been fully complied with on the part of the United States Government, and if they have not that he inform the Senate of...

"The Union of the United States of America was intended by its authors to last as long as the States themselves shall last. 'The Union shall be perpetual' are the words of the Confederation. 'To form a more perfect Union,' by an ordinance of the people of the United States, is the declared purpose of the Constitution. The hand of Divine Providence was never more plainly visible in the affairs...

"Much has been said and written upon the subject of this new system on both sides, but I have not met with any writer who has discussed the judicial powers with any degree of accuracy. And yet it is obvious, that we can gain but very imperfect ideas of the manner in which this government will work, or the effect it will have in changing the internal police and mode...

"Two hundred and thirteen years ago today, a few hundred feet from where we stand, 39 men signed a document that would change the world. Some of them—Washington, Franklin, Madison—are remembered today as our greatest citizens. In light of the naturalization ceremony just held, I think it's worth noting that 8 of those 39 signers were immigrants, including Alexander Hamilton, born in the West...

This controversial case overturned Austin v. Michigan Chamber of Commerce (494 U.S. 652), the Court stating that stare decisis does not apply because "Austin was a significant departure from ancient first Amendment principles."

At issue was a law that stated, "if a covered transmission during the blackout period creates the...

The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution.

"Good afternoon. First, I just want to express my appreciation to both Justice Scalia and Justice Breyer for being back here in the Senate Judiciary Committee. Having been there for both your confirmation hearings, we did not have this great room at that time. I also want to thank all the students who are here. I know when I was at Georgetown Law School, I would have loved to have done...

"We may summarize our view of constitutional government by saying that its ultimate and essential objects are:

1st. To bring the active and planning will of each part of the government into accord with the prevailing popular thought and need, in order that government may be the impartial instrument of a symmetrical national...

"I am deeply grateful for the invitation to participate in the 'Text and Teaching' symposium. This rare opportunity to explore classic texts with participants of such wisdom, acumen and insight as those who have preceded and will follow me to this podium is indeed exhilarating. But it is also humbling. Even to approximate the standards of excellence of these vigorous and graceful intellects is...

Justice Scalia shares his views on how the Constitution should be interpreted. He warns that the idea of a "living constitution" may be a danger to the integrity of the Constitution itself, as well as the integrity of judges attempting to uphold the Constitution.  Scalia defends his stance as an orginalist.

Cooper v. Aaron held that states are bound to Supreme Court decisions.  This case held that since Marbury established the concept of judicial review and that the Supreme Court is supreme in the interpretation of the Constitution, then the states are also beholden to the decisions of the Supreme Court due to the incorporation of the 14th Amendment, where the 14th Amendment applies to...

Tocqueville's famous analysis of the American economic and political system, as he observed during his travels of the country in the 1830s.

Niccolò Machiavelli's defense of republican principles. He argues for governments of the people because they are better than those of princes. His arguments have had great influence across the centuries and deeply influenced the American Founders.

In District of Columbia v. Heller, the Court held that the ban on handguns in the District of Columbia was in violation of the Second Amendment.  The majority opinion written by Justice Scalia depends on concepts of originalism to reason that the ban on guns in the District of Columbia was unconstitutional. Both the majority and the dissenting opinion use examples from the era of the...

"Now it is true that I believe this country is following a dangerous trend when it permits too great a degree of centralization of governmental functions. I oppose this--in some instances the fight is a rather desperate one. But to attain any success it is quite clear that the Federal government cannot avoid or escape responsibilities which the mass of the people firmly believe should...

These essays present his view on various philosophical, political, economic, and social topics.

"This is an original petition in this court for a writ of habeas corpus by Philip Grossman against Ritchie V. Graham, Superintendent of the Chicago House of Correction, Cook County, Ill. The defendant has answered the rule to show cause. The facts are not in dispute."

In his first inaugural address, President Roosevelt (FDR) gives a speech that borders on messianic with references to the money changers in the temple and the need to move away from a society based on profit. He then outlines various steps towards restoring the economy...

Griswold is a landmark Supreme Court case that argued that the Bill of Rights contains penumbras, rights that are guaranteed by implications of the Constitution, that create zones of privacy. For example, the right of association in the First Amendment, the prohibition against quartering of soldiers in the Third Amendment, and the protection against unreasonable...

"Since Marbury v. Madison the federal judiciary has assumed the role of the interpreter and, now, final arbiter of our Constitution. But, what rules must judges follow in doing so? What informs, guides and limits our interpretation of the admittedly broad provisions of the Constitution? And, more directly, what restrains us from imposing our personal views and policy preferences on...

Kagan's written appreciation for former justice Thurgood Marshall. A look at how his views influenced her thinking as a Supreme Court judge.

"I have recd your very friendly favor of the 20th instant, referring to a conversation when I had lately the pleasure of a visit from you, in which you mentioned your belief that the terms 'common defence & general welfare' in the 8th section of the first article of the Constitution of the U. S. were still regarded by some as conveying to Congress a substantive & indefinite power, and...

"I respect too much the right and the duty of the Reps of the people to examine for themselves, the merits of all questions before them, and am too conscious of my own fallibility, to view the most rigid & critical examination of the particular question referred to your Committee, with any other feeling than a solicitude for a result favorable to truth and the public good."

"Your late letter reminds me of our Conversation on the constitutionality of the power in Congs. to impose a tariff for the encouragemt. of Manufactures; and of my promise to sketch the grounds of the confident opinion I had expressed that it was among the powers vested in that Body."

"I have recd. your favor of the 22d Ult ... inclosing a copy of your observations on the Judgment of the Supreme Court of the U. S. in the case of M'Culloch agst. the State of Maryland; and I have found their latitudinary mode of expounding the Constitution, combated in them with the ability and the force which were to be expected."

Judge Sonia Sotomayor's Speech on being nominated to the Supreme Court.

This U.S. Supreme Court decision rules that if police believe that evidence may be destroyed before they can secure a warrant, then an "exigent circumstance" has been established. At which point the police may simply enter and search a home or other private property. Civil libertarians are likely concerned that the police may use this ruling to justify many...

Lochner represents the height of economic freedom protected by substantive due process. The case arose because the owner of a bakery had violated New York state labor law, which stipulated "that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day." The court acknowledged the liberty of contract...

A landmark case which helped form the basis for Judicial Review. The case involved the midnight appointments by President Adams to fill various judicial positions throughout the country. William Marbury had been appointed Justice of the Peace for the District of Columbia, but his appointment was never delivered by the new secretary of state, James Madison. Chief Justice John Marshall and the...

"The Court today has written a narrow and, on the whole, careful opinion. In effect, the Court holds that officially sponsored legislative prayer, primarily on account of its 'unique history,' ante at 791, is generally exempted from the First Amendment's prohibition against 'an establishment of religion.' The Court's opinion is consistent with dictum in at least one of our prior decisions, and...

"The excitement which grew out of the territorial controversy between the United States and Great Britain having in a great measure subsided, it is hoped that a favorable period is approaching for its final settlement. Both Governments must now be convinced of the dangers with which the question is fraught, and it must be their desire, as it is their interest, that this perpetual cause of...

This Supreme Court case is considered a landmark case on the issue of federalism. The decision held that the authority of the federal government is expressly enumerated in the Constitution, and that the implied powers of the federal government override the reserved rights of the states. According to Chief Justice Marshall, the Necessary and Proper clause implies...

"Being suddenly called in the midst of the last session of Congress by a painful dispensation of Divine Providence to the responsible station which I now hold, I contented myself with such communications to the Legislature as the exigency of the moment seemed to require. The country was shrouded in mourning for the loss of its venerable Chief Magistrate and all hearts were penetrated with...

"This is a habeas corpus case originating in the Supreme Court of New York. Relator was indicted in the County Court of Kings County and sent to jail to await trial upon the charge that, as manager of a laundry, he failed to obey the mandatory order of the state industrial commissioner prescribing minimum wages for women employees."

The U.S. Supreme Court's highly anticipated decision which upheld the Affordable Care Act.

"Today's speaker, Judge Robert H. Bork, is a former federal appeals court judge, noted legal scholar and a rare American to have a verb named after him.

To Bork or to be Borked has become part of the American political lexicon, meaning to have your political enemies to attempt to destroy you personally simply to score political points.

With the Supreme Court confirmation hearings...

"I am pleased to be here at the New School. The University's distinction is legendary. Since the early part of the Twentieth Century the School's name has been synonymous with excellence in humanities, public policy, and the liberal arts. In the 1930s, its University in Exile provided refuge for those fleeing from oppression abroad. My own Supreme Court predecessor, Felix Frankfurter, lectured...

Although Lysander Spooner had strongly opposed slavery and defended the Constitution before the Civil War, after it he argued "On the part of the North, the war was carried on, not to liberate slaves.... The principle, on which the war was waged by the North, was simply this: That men may rightfully be compelled to submit to, and support, a government that they do not want; and that resistance, on their part, makes them traitors and criminals." He argued that while slavery is wrong, the Southern states had a right to secede. By forcing them to remain in the Union, the government had effectively renounced the compact of the Constitution, he argued.

"A bankrupt or insolvent law of any state which discharges both the person of the debtor and his future acquisitions of property is not 'a law impairing the obligation of contracts' so far as respects debts contracted subsequent to the passage of such law in those cases where the contract was made between citizens of the state under whose laws the discharge was obtained and in whose courts the...

"Nock was a prominent essayist at the height of the New Deal. In 1935, hardly any public intellectuals were making much sense at all. They pushed socialism. They pushed fascism. Everyone had a plan. Hardly anyone considered the possibility that the state was not fixing society but destroying it bit by bit."

"I will talk today about the use of foreign law in American judicial opinions. Since most of what I will have to say is unfavorable to the use of foreign law, I feel I should begin by pointing out that I am not a xenophobe. I do not mind foreign law. In fact, in my years as a law professor, I used to teach foreign law. One of my subjects was comparative law. I indeed believe that comparative...

"Although frequently urged by friends to write my memoirs I had determined never to do so, nor to write anything for publication. At the age of nearly sixty-two I received an injury from a fall, which confined me closely to the house while it did not apparently affect my general health. This made study a pleasant pastime. Shortly after, the rascality of a business partner developed itself by...

According to Oyez, "The Constitution gave the states the power to impose direct taxation. The federal government could impose direct taxes as well, but only if those taxes were apportioned among the states in proportion to their representation in Congress. In this case the Court examined a national income tax...

"In November 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House...

"I have always been persuaded that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important that the Judiciary system should not only be independent in its operations, but as perfect as possible in its...

An attack against the revolution in France by Edmund Burke. Burke argues that the French Revolution will end disastrously because its abstract foundations, purportedly rational, ignore the complexities of human nature and society.

"This speech Thurgood Marshall gave in 1987 was part of the constitutional bicentennial celebration. Politicians and Judges around the country were praising the 'founding Fathers' for their genius at writing a document that established the guiding legal principles of the republic for generations. But Marshall was one of the few voices pointing out that the original constitution required...

"A generation ago, Harvard law professor Frank Michelman advanced an influential and provocative vein of scholarship theorizing the content and justiciability of constitutional welfare rights. Michelman's writings, which endure as the most insightful and imaginative work in this area, sought to anchor the Supreme Court's welfare rights jurisprudence in a comprehensive theory of distributive...

"Well, it's with great pleasure and deep respect for his extraordinary abilities that I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an Associate Justice of the Supreme Court. Judge Bork is recognized as a premier constitutional authority. His outstanding intellect and unrivaled scholarly credentials are reflected in his thoughtful...

"This case requires us to address, for the second time in a decade and a half, whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime."

"I have maturely considered the important questions presented by the bill entitled 'An act making appropriations for the support of the Army for the fiscal year ending June 30, 1880, and for other purposes,' and I now return it to the House of Representatives, in which it originated, with my objections to its approval."

"This is an absolutely wonderful occasion. Today, we celebrate both our nation's birthday, and also the opening of the National Constitution Center in the great city of Philadelphia. The Constitution Center and Independence Hall, together with the Liberty Bell, form a place that every American should visit. It will contribute each and every day to the reinforcement of the basic principles that...

"The United States Constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government (and, to a lesser extent, state governments), and, finally, a series of legal disabilities on the exercise of those authorities (such as protections for individual rights). The document also addresses the complicated legal...

"Persons who sell liquor are not relieved from liability for the internal revenue tax imposed by the federal government by the fact that they have no interest in the profits of the business and are simply the agents of a state which, in the exercise of its sovereign power, has taken charge of the business of selling intoxicating liquor. ...

The national government is one of enumerated...

"This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of July 3, 1918, c. 128, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same. The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the...

US v. Carolene Products signified the abandonment of substantive due process protections for economic rights. Justice Stone argued that the government only had to provide a rational basis for enacting economic regulation. From this, the...

In this case the Supreme Court ruled that a meatpacking plant, as part of the "current of commerce" between states, was subject to congressional regulation. According to the Court, Congress has the power to regulate commerce even if the commerical activity is localized, so long as it could eventually become part of interstate trade.

"Here is the text of remarks by President Bush and Judge Samuel Alito at the White House announcement of Alito's nomination to the Supreme Court, as transcribed by the White House...."

"[O]ver the course of 19 years on the Supreme Court, I learned some lessons about the Constitution of the United States, and about what judges do when they apply it in deciding cases with constitutional issues. I'm going to draw on that experience in the course of the next few minutes, for it is as a judge that I have been given the honor to speak before you."

"Article V of the U.S. Constitution provides two methods of proposing amendments. First, Congress, with the approval of two-thirds of both houses, may propose amendments to the states for ratification, a procedure used to propose all 27 current amendments to the Constitution. Second, if the legislatures of two-thirds of the states (34 at present) apply, Congress shall call a convention for...

"Probably written by a pupil of Aristotle, it is the first history of Athens as a model democracy, how it came into existence, and how it operated in practice."

Alexander Hamilton explores the proposed role of the judiciary in the U.S. federal government. The independence of the court and a discussion of judicial review is included, and Hamilton argues that interpretation of laws should be left to the judiciary under the power of judicial review.

"At least one of the more than half-dozen persons nominated during the past decade to be an Associate Justice of the Supreme Court of the United States has been asked by the Senate Judiciary Committee at his confirmation hearings whether he believed in a living Constitution. ... It is not an easy question to answer; the phrase 'living Constitution' has about it a teasing imprecision that makes...

Aristotle, one of the best known Western philosophers, concluded his work on ethics with the statement that he intended to look into "the whole question of the management of a state." The Politics was his effort to do so. He examines the origin and purpose of government, and then discusses Plato's The Republic and other proposed and existing forms of government.

This volume, written in dialogue format, is the original work of political idealism by one of the best-known Western philosophers.

Chief Justice Charles Evans Hughes discussed the role of the Supreme Court in American government and the importance of the Court's ability to interpret the Constitution through judicial review.  He asserted that interpretation of the Constitution is vital due to the nature of the Constitution, which has some portions left intentionally vague. The Supreme Court's interpretative power is...

Locke's Second Treatise develops his descriptions of the state of nature along with natural law. His work was extremely influential in the founding of America and its Constitution.

Rousseau is noted for advancing the idea of popular sovereignty. He opens with the question of whether any government authority can be legitimate, and concludes that the only legitimate government is one where "the laws being solely the authentic acts of the general will, the Sovereign cannot act save when the people is assembled."

Montesquieu was a significant advocate of separation of powers between executive, legislative, and judicial branches, and his discussion of law contributed significantly to the concept of rule of law.

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government."

"The question you propose, on equal representation, has become a party one, in which I wish to take no public share. Yet, if it be asked for your own satisfaction only, and not to be quoted before the public, I have no motive to withhold it, and the less from you, as it coincides with your own."

"The Attorney Genl having considered and decided that the prescription in the law for establishing a bank, that the officers in the subordinate offices of discount & deposit, shall be appointed 'on the same terms and in the same manner practised in the principal bank,' does not extend to them the principle of rotation, established by the Legislature in the body of directors in the...

"You request me confidentially, to examine the question, whether the Supreme Court has advanced beyond its constitutional limits, and trespassed on those of the State authorities? I do not undertake it, my dear Sir, because I am unable. Age and the wane of mind consequent on it, have disqualified me from investigations so severe, and researches so laborious. And it is the less necessary in...

Also known as Cicero's Republic, this is the second part of his political writings (see explanation here). Cicero's work has been noted to have influenced thinkers from St. Augustine to American Founding Fathers such as Benjamin Franklin, John Adams, and John Marshall.

Marcus Tullius Cicero argues that the Roman Republic blended the best elements of monarchy, aristocracy, and democracy, with a strong executive, a Senate dominated by the elite class, and open elections for other positions. Like other classical authors, he discusses the concept of justice and emphasizes the importance of education.

"At least as applied in this case to a native-born citizen of the United States who did not voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign nation, § 401(g) of the Nationality Act of 1940, as amended, which provides that a citizen 'shall lose his nationality' by

deserting the military or naval forces of the United States in...

"In Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view (almost in passing) that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power...

This is considered a landmark case as it was the first time since the New Deal that federal legislation claiming authority under the commerce clause was overturned. 

Chief Justice William Rehnquist wrote the majority opinion for this case, declaring that the Gun-Free School Zones Act of 1990 was unconstitutional because...

This Supreme Court case is regarded as the case that threw open the doors of federal government regulation. Whenever the constitutional authority of Congress to regulate interstate commerce is brought up, legal scholars and analysts point to this case, which gives Congress the authority to regulate almost anything it wants to regulate.

...

"The first of a series of lectures on Education under the auspices of the Lecture Bureau of the Department of Education was delivered in Cooper Union last night by President Woodrow Wilson of Princeton University, who chose for his subject 'Americanism.'"

"The framers, in seeking to establish and preserve the presidential veto, were aware that the originating House, unlike the President who is without incentive to avoid receipt of a bill which he is free to veto, might have the strongest motives to avoid the veto of a bill, if that were possible, by preventing its return or by challenging the fact of its return. They accordingly took care to...

Among the few issues addressed by Zachary Taylor in his inaugural speech was the issue of foreign entanglements. Taylor cautions that the American love of liberty must not cause the nation to commit herself to involvement in extraneous affairs.

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Supplement Your Education
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