Constitutional Analysis
The different levels of scrutiny given by
the Supreme Court to Legislation or
Government actions with a focus on
Commerce Legislation
Levels of Scrutiny
• Rational Basis – for economic regulation – law or
action needs only to have some rational basis for
it to be held constitutional by Court.
• Intermediate Scrutiny – gender discrimination,
public benefits . . . . Law must further a
substantial government interest and be the least
restrictive means of doing so.
• Strict Scrutiny – voting, race, marriage, 1st amdt
rights, fundamental rights . . . Law or action must
further a compelling governmental interest and
be precisely tailored to further that objective.
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The originalist approach
The originalist approach aspires to interpret constitutional text in light of original intentions
or understandings of the founding fathers who wrote the Constitution. Advocates of
originalism, such as Justice Antonin Scalia, are centrally concerned with discovering the
subjective intentions of the figures who wrote or framed particular constitutional provisions.
They tend to focus on the original public meaning or understanding of a constitutional
provision for the generation that ratified or amended that provision. Originalism, of course,
has its own liabilities, including determining what counts as evidence of intent, whose intent
counts, and whether the promulgated intent should be abstract or concrete. Accordingly, one
common criticism of originalism is that an originalist, while claiming to interpret a provision
based on the original intent behind it, actually will pick and choose from a variety of sources
to meet the meaning he or she wishes to give it.
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The doctrinalist approach
The doctrinalist approach searches out past interpretations of the Constitution as they relate
to specific problems and tries to organize them into a coherent whole, fitting the solution of
the current problem at issue into that whole. Doctrinalism gives a central place to the
principle of stare decisis, seeking to extend received decisions and understandings in
incremental fashion to cover new cases and problems as they arise. In doing so, it attempts
to preserve the continuity of the common law even if effecting change. This method is often
used to teach constitutional law in American law schools, where casebooks often are
organized topically. Doctrinalism, like all approaches, has its own difficulties. For example,
textualists argue that doctrinalism distracts attention from the Constitution itself, placing too
much emphasis on commentary on the text. For example, Justice Felix Frankfurter wrote,
"the ulimate touchstone of constitutionality is the Constitution itself and not what we have
said about it." Another criticism, levied by jurists like Antonin Scalia, is that doctrinalism
allows for too much judicial discretion.
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The developmentalist approach
The developmentalist approach builds on doctrinalism by accepting the value of incremental
additions of judge-made doctrine, but goes further by enlarging the interpretive arena to
include broader historical events, such as informal practices, usages, and political culture.
Developmentalists reject both the notions of a static constitution and of "The Moral
Constitution", and instead tend to focus on "how meaning has evolved." Chief Justice Earl
Warren exemplified this when he said the Constitution ought to be interpreted in light of "the
evolving standards of decency that mark the progress of a maturing society." Accordingly,
proponents of developmentalism often argue the theory of the Living Constitution, which
premises that the Constitution is, to some degree, dynamic. Because of this, however,
developmentalism can be assailed on many of the same points as doctrinalism. For example,
it does little to advance any goal of stability, for by its very nature it commits itself to the
legitimacy of what it calls "constitutional change" not merely from the past to the present
but also from the present to an unknown future. As such, a common criticism is that it makes
the Constitution "mean nothing," because it holds that it can mean "anything."
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The contextualist approach
Like originalism and textualism, the contextualist approach is concerned with an original
meaning of the text itself to those who wrote the text, but instead of a subjective intent, it
seeks to examine the broad context in which the provision at issue was promulgated, arguing
that, in some important respect, the provision can only be understood relative to its context.
This context can be facial -- that is, examining why the provision is located where it is in the
whole document, or it can be historical -- examining the broad and long history behind the
provision to determine the broadest possible intent. This was the main theory of
interpretation that the Supreme Court used in the 1880s through the 1920s, resulting in such
decisions as Plessy v. Ferguson (upholding racial segregation because the broad historical
context of the Thirteenth Amendment and Fourteenth Amendment did not support the idea
that they were intended to prevent states from separating races), Lochner v. New York
(striking down minimum wage laws because they violated the Fourteenth Amendment's
contextual "general right to make a contract in relation to his business"), and Bailey v. Drexel
Furniture Co. (striking down a tax on child labor because the context of Article I of the
Constitution was such that the framers intended taxes not to function as regulations).
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The structuralist approach
The structuralist approach proposes to decide hard cases by looking for guidance in the
Constitution's general arrangement of offices and powers. In so doing, it is related to facial
contextualism. That general arrangement might be characterized as a form of democracy or
representative, deliberative, or constitutionalist government. This approach differs from
textualism or strict constructionism because it notes that none of the Constitution's principal
structural ideas, such as separation of powers, checks and balances, federalism, democracy,
or fundamental rights, is expressly mentioned in the text. Proponents of structuralism explain
and justify their decisions by advancing claims about the proper understanding of
constitutional structure. Chief Justice Salmon P. Chase advanced such claims when examining
in Texas v. White what deference ought to be given to decisions of Confederate states' courts
once the American Civil War was over. Chief Justice John Marshall also advanced a
structuralist outlook when discussing his conception of federal-state relations in McCulloch v.
Maryland. Still, structuralism lends itself to opposition which argues that it is too subjective,
without any formal basis for making its claims because it lacks textual, contextual, or
historical support.
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Legal Interpretation and Literary Interpretation
Takes ways to interpret literature and applies them to legal opinions and statutes, and
conversely, tries to see if ways commonly used to interpret the law can be useful in literature.
One of the most clear expositions of the intellectual trends in this area are laid out in Richard A.
Posner’s book, Law and Literature, 1988, Cambridge: Harvard University Press.
Posner criticizes literary deconstruction as largely inapplicable to legal texts, as such texts are
political documents and by their very nature, are designed to command particular behavior and to
communicate particular ideas, while literature has no such mandate.
Posner argues that the problem of determining a legal text’s original intent is not as important as
argued by Scalia et al., as the words of the text itself provide much of the clue to its interpretation
and we must assume statutory law was intended to mean what it says, and for any ambiguities
determined later through litigation or further legislative amendment.
e.g. The Const’s mandate that a president be 35 years of age – is a clear mandate – why else
would a specific age be set out? It would not be logical to argue that at the time of the Framers, 35
was akin to 50 years of age today, and so 50 in 2009 should be the mandatory age for assuming
office. It would not make sense because, as a political document setting the boundaries of our
government, certain demarcations or bright line rules had to exist or the people would be
hopelessly embroiled in continual controversy. Law must set limits – age 18 as the age of majority,
for example. Thus, the different purposes of law and literature call for different styles of
interpretation.
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Interpreting the Constitution of the United States
Throughout the history of the United States, courts have used a wide variety of theories of
judicial interpretation to construe the Constitution of the United States, including textualism,
originalism, strict constructionism, functionalism, doctrinalism, developmentalism,
contextualism (historical or facial), structuralism, or even a combination of several of these
schools of thought. As examples, some jurists have interpreted the Constitution based on
their philosophical outlook that the Constitution is a "Living Constitution," while others have
interpreted it as "The Moral Constitution".
[edit] The textualist or strict constructionist approach
The textualist approach to interpreting the Constitution, sometimes called strict
constructionism, insists on the literal meaning of a provision in the face of contrary claims
that the text must mean more or less than it expressly says. This approach appeals to the
promises of simplicity and determinacy. For example, Supreme Court Justice Hugo Black
insisted that the First Amendment's command that "Congress shall make no law ... abridging
the freedom of speech" meant exactly that, "no law."
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Cases are cited for the proposition that where two or more tortfeasors acting
independently of each other cause an injury to plaintiff, they are not joint tortfeasors
and plaintiff must establish the portion of the damage caused by each, even though it is
impossible to prove the portion of the injury caused by each.
In view of the foregoing discussion it is apparent that defendants in cases like the present one
may be treated as liable on the same basis as joint tortfeasors, and hence the last-cited cases
are distinguishable inasmuch as they involve independent tortfeasors.
In addition to that, however, it should be pointed out that the same reasons of
policy and justice shift the burden to each of defendants to absolve himself if he
can-relieving the wronged person of the duty of apportioning the injury to a particular
defendant, apply here where we are concerned with whether plaintiff is required to supply
evidence for the apportionment of damages. If defendants are independent tortfeasors and
thus each liable for the damage caused by him alone, and, at least, where the matter of
apportionment is incapable of proof, the innocent wronged party should not be deprived of
his right to redress. The wrongdoers should be left to work out between themselves any
apportionment.
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Some of the cited cases refer to the difficulty of apportioning the burden of
damages between the independent tort feasors, and say that where factually a correct
division cannot be made, the trier of fact may make it the best it can, which would be
more or less a guess, stressing the factor that the wrongdoers are not in a position to
complain of uncertainty.
It is urged that plaintiff now has changed the theory of his case in claiming a
concert of action; that he did not plead or prove such concert. From what has been said it
is clear that there has been no change in theory. The joint liability, as well as the lack
of knowledge as to which defendant was liable, was pleaded and the proof developed the
case under either theory. We have seen that for the reasons of policy discussed herein,
the case is based upon the legal proposition that, under the circumstances here presented,
each defendant is liable for the whole damage whether they are deemed to be acting in
concert or independently.