# Constitution of the United States of America/Annotated/Introduction/Interpreting the Constitution Generally

Online at https://constitution.congress.gov/browse/essay/intro.8-1/ALDE_00001302/
Early in the history of the United States, the Supreme Court began to exercise the power that it is most closely and famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison, the Supreme Court famously asserted and explained the foundations of its power to review the constitutionality of federal governmental action. During the two decades following its holding in Marbury, the Court decided additional cases that helped to establish its power to review the constitutionality of state governmental action. If a challenged governmental action is unconstitutional, the Court may strike it down, rendering it invalid. When performing the function of judicial review, the Court must necessarily ascertain the meaning of a given provision within the Constitution, often for the first time, before applying its interpretation of the Constitution to the particular governmental action under review.
The need to determine the meaning of the Constitution through the use of methods of constitutional interpretation and, perhaps, construction, is apparent from the text of the document itself. While several parts of the Constitution do not lend themselves to much debate about their preferred interpretation, much of the Constitution is broadly worded, leaving ample room for the Court to interpret its provisions before it applies them to particular legal and factual circumstances. For example, the Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The text of the Amendment alone does not squarely resolve whether the “right of the people to keep and bear [a]rms” extends to all citizens or merely is related to, or perhaps conditioned on, service in a militia. This ambiguity prompted a closely divided 2008 decision of the Supreme Court that ruled in favor of the former interpretation.
The text of the Constitution is also silent on many fundamental questions of constitutional law, including questions that its drafters and those ratifying the document could not have foreseen or chose not to address. For example, the Fourth Amendment, ratified in 1791, does not on its face resolve whether the government may perform a search of the digital contents of a cellphone seized incident to arrest without obtaining a warrant. Thus, interpretation is necessary to determine the meaning of ambiguous provisions of the Constitution or to answer fundamental questions left unaddressed by the drafters. Some commentators have also noted the practical need for constitutional interpretation to provide principles, rules, or standards to govern future conduct of regulated parties, as well as political institutions, branches of government, and regulators.
When deriving meaning from the text of the Constitution, the Court has relied on certain “methods” or “modes” of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. There is significant debate over which sources and methods of construction the Court should consult when interpreting the Constitution—a controversy closely related to more general disputes about whether and how the Court should exercise the power of judicial review.
Judicial review at the Supreme Court, by its very nature, can involve unelected judges overturning the will of a democratically elected branch of the Federal Government or popularly elected state officials. Some scholars have argued that in striking down laws or actions, the Court has decided cases according to the Justices’ own political preferences. In response to these concerns, constitutional scholars have constructed theories designed to ensure that the Justices following them would be able to reach principled judgments in constitutional adjudication. In 1987, Professor Richard Fallon of the Harvard Law School divided “interpretivists”, or those purporting to prioritize the specific text and plain language of the Constitution above all else, into two basic camps: “On one side stand ‘originalists,’” whom he characterized as taking “the rigid view that only the original understanding of the language and the framers’ specific intent ought to count. On the other side, ‘moderate interpretivists’ allow contemporary understandings and the framers’ general or abstract intent to enter the constitutional calculus.” Whether or not Professor Fallon’s precise description at the time was accurate, those regarding themselves as originalists have clarified that the Court should rely on the fixed meaning of the Constitution as understood by at least the public at the time of the founding. This has become known as the original public meaning of the Constitution.
On the other hand, still other commentators have questioned the legitimacy of fixating on what the Framers, ratifiers, or members of their generation might have considered the core meaning of a particular provision of the Constitution, and have instead suggested interpretive methods that ensure the Court’s decisions allow government to function properly, protect minority rights, and safeguard the basic structure of government from majoritarian interference. Although the debate over the proper sources of the Constitution’s meaning remains unresolved, several key methods of constitutional interpretation have guided the Justices in their decision making and, more broadly, have influenced constitutional dialogue.
It is possible to categorize the various methods that have been employed when interpreting the Constitution. This essay broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods by the Court. The modes discussed in detail in this essay are: (1) textualism; (2) original meaning; (3) judicial precedent; (4) pragmatism; (5) moral reasoning; (6) national identity (or “ethos”); (7) structuralism; and (8) historical practices.
In explaining these modes, this essay is merely describing the most common methods on which the Justices (and other interpreters) have relied to argue about the meaning of the Constitution. Depending on the mode of interpretation, the Court may rely upon a variety of materials that include, among other things, the text of the Constitution; constitutional and ratification convention debates; prior Court decisions; pragmatic or moral considerations; and long-standing congressional or legislative practices. It is important to note that the Court may use more than one source in deciding a particular case, and the Justices must exercise some discretion in choosing or coordinating the sources and materials they will consult in making sense of those sources. A discussion of these modes of interpretation and the materials the Justices rely upon will aid the reader in understanding the motivating principles behind the Court’s decisions, as discussed in further detail in the Constitution Annotated.

## Notes

* $^{[A]}$↑ District of Columbia v. Heller