And often enough it may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency. After all, passing majorities will applaud judicial efforts to follow their wishes. But as Korematsu and Dred Scott illustrate, the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.
Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Oh, it sounded nice enough. The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend.
Excerpted by permission of Crown Forum. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher. Contact us at letters time. The Preamble to the US Constitution. By Neil M. Gorsuch is an associate justice of the Supreme Court of the United States. A Colorado native, he served as a judge on the U.
Court of Appeals for the Tenth Circuit, which is based in Colorado and hears appeals from six western states, before his appointment to the Supreme Court in April He has also worked as a senior official at the U. Department of Justice, where he helped oversee its civil litigating divisions; as a partner at a law firm; as a law professor; and as a law clerk for Justices Byron White and Anthony Kennedy.
TIME Ideas hosts the world's leading voices, providing commentary on events in news, society, and culture. We welcome outside contributions. Leon , the majority held that the Fourth Amendment does not necessarily require a court to exclude evidence obtained as a result of the law enforcement's good faith reliance on an improperly issued search warrant. Another case in which the Supreme Court accorded weight to the likely practical consequences of a particular interpretation of the Constitution is United States v.
Using another type of pragmatist approach, a court might consider the extent to which the judiciary could play a constructive role in deciding a question of constitutional law. Carr illustrates the application of this second type of pragmatism. In that case, Justice William Brennan, writing for the majority, debated a dissenting Justice Felix Frankfurter about whether the Court was the proper actor to review the constitutionality of a state's apportionment of voters among legislative districts, or whether the plaintiffs should have sought remedies from the state legislature.
Those who support pragmatism in constitutional interpretation argue that such an approach takes into account the "political and economic circumstances" surrounding the legal issue before the Court and seeks to produce the optimal outcome. Critics of pragmatism argue that consideration of costs and benefits unnecessarily injects politics into judicial decisionmaking.
Rather, a judge's role is to say what the law is and not what it should be. Another approach to constitutional interpretation is based on moral or ethical reasoning—often broadly called the "ethos of the law. Texas , the Court struck down a Texas law that banned private, consensual same-sex sexual activity as violating the Due Process Clause of the Fourteenth Amendment.
A particularly famous example of an argument based on the "ethos of the law" is contained in the Court's decision in Bolling v. Board of Education , which held that a state, in segregating its public school systems by race, violated the Fourteenth Amendment. Proponents of using moral or ethical reasoning as an approach for making sense of broad constitutional text, such as the Due Process Clause of the Fourteenth Amendment, argue that general moral principles underlie much of the text of the Constitution.
Critics of using moral reasoning in constitutional interpretation have argued that courts should not be "moral arbiters. Judges using this mode of constitutional interpretation may therefore decide cases according to their own policy views, and opponents believe that overturning acts of the political branches based on such considerations is undemocratic.
Another approach to interpretation that is closely related to but conceptually distinct from moral reasoning is judicial reasoning that relies on the concept of a "national ethos. City of East Cleveland , in which the Court struck down as unconstitutional a city zoning ordinance that prohibited a woman from living in a dwelling with her grandson. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.
Many of the arguments in the debate over reliance on the "national ethos" in constitutional interpretation share similarities with arguments made about the use of moral reasoning as a mode of interpretation. Some proponents of using the distinct character of the American national identity and the nation's institutions as a method for elaborating on the Constitution's meaning argue that the "national ethos" underlies the text of the Constitution, and that the use of this method allows more flexibility for judges to incorporate contemporary American values when deriving meaning from the Constitution.
On the other hand, as with moral reasoning, critics of an approach to constitutional interpretation based on the "national ethos" have argued that such an approach involves unelected judges determining the meaning of the Constitution based on principles that are not objectively verifiable—determinations that critics argue should be made by the political branches.
One of the most common modes of constitutional interpretation is based on the structure of the Constitution. Indeed, drawing inferences from the design of the Constitution gives rise to some of the most important relationships that everyone agrees the Constitution establishes—the relationships among the three branches of the federal government commonly called separation of powers or checks and balances ; the relationship between the federal and state governments known as federalism ; and the relationship between the government and the people.
The first, known as formalism, posits that the Constitution sets forth all the ways in which federal power may be shared, allocated, or distributed.
An example of the Court's use of formalist structural reasoning in the context of federalism is U. Term Limits, Inc. A second form of structural reasoning, known as functionalism, treats the Constitution's text as having firmly spelled out the relationship among the three federal branches only at their apexes, but otherwise left it to be worked out in practice how power may be distributed or shared below the apexes.
As is evident, a threshold debate among structuralists is whether to use a formalist or functionalist approach when interpreting the Constitution.
This debate is founded partly in concerns about which approach demonstrates greater fidelity to the Constitution, which is closest to the original meaning of the Constitution, and which best protects liberty in cases raising questions about the proper allocation of power between the branches of the federal government; federal government and states; government institutions; or citizens and government.
Formalism focuses on the structural divisions in the Constitution with the idea that close adherence to these rules is required in order to achieve the preservation of liberty. By contrast, functionalism takes a more flexible approach, emphasizing the core functions of each of the branches, and asking whether an overlap in these functions upsets the equilibrium that the Framers sought to maintain.
A further illustration of the distinction between formalism and functionalism in a separation-of-powers case is Morrison v. Proponents of structuralism note that it is a method of interpretation that considers the entire text of the Constitution rather than a particular part of it.
Nevada , the Court struck down a state law imposing a tax on people leaving or passing through the state. Some scholars maintain, however, that structuralism does not always lead to a clear answer. While the eminent Professor Charles Black argued that structure was the most important mode of constitutional interpretation, at least one other prominent commentator has argued that the approach provides "no firm basis for personal rights" because personal rights are considered to derive from the "structure of citizenship" and are therefore "vulnerable to the [government's] desire for power and its ability to manipulate the relation between citizen and state.
Judicial precedents are not the only type of precedents that are arguably relevant to constitutional interpretation. Prior decisions of the political branches, particularly their long-established, historical practices, are an important source of constitutional meaning to many judges, academics, and lawyers. An example of judicial reliance on historical practices—sometimes described as tradition—in constitutional interpretation is the Court's decision in National Labor Relations Board v.
An example of the use of historical practices as a method of constitutional interpretation in a case involving the limits of government power is Marsh v. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. The debate over historical practices as a mode of interpretation echoes many of the elements of debates over original meaning, judicial precedent, and arguments based on a "national ethos.
Those opposing reliance on historical practices as a source of constitutional meaning argue that it may be difficult to establish definitively what the relevant historical practices are in order to interpret the Constitution properly. Moreover, they can lead to results inconsistent with the original meaning of the Constitution. Indeed, giving historical practices special place in constitutional interpretation could lead courts to fail to protect minority rights or to preserve the basic structure of government established by the Constitution.
Deriving the Constitution's meaning from long-established, historical practices of the political branches is one of several methods of constitutional interpretation the Court has relied upon when exercising the power of judicial review. In explaining the meaning of the provisions of the Constitution, courts and commentators often refer to these modes of interpretation.
An understanding of these methods, which are not mutually exclusive, will aid congressional staff in understanding the development of the constitutional doctrines that guide the Justices, government officials, and other individuals when they interpret the Constitution.
See, e. Virginia, 19 U. Hunter's Lessee, 14 U. Peck, 10 U. The Court first struck down an action of the executive branch of the federal government as unconstitutional in Little v. Barreme , 6 U. The Court first struck down a state law as unconstitutional in Fletcher v. See 10 U. The term "judicial review" refers to "a court's power to review the actions of other branches or levels of government[, and especially] the courts' power to invalidate legislative and executive actions as being unconstitutional.
Professor Keith Whittington has distinguished between the concepts of "constitutional interpretation" and "constitutional construction. For example, the Constitution provides a clear, bright-line rule that individuals who have not yet "attained to the Age of thirty five Years" are ineligible to be President. See U. Chemerinsky, supra note 7, at 11; Cass R. Sunstein, The Partial Constitution 93—94 See District of Columbia v.
Heller, U. The Court resolved this question in Riley v. California , holding that a warrant is needed to search the contents of a cell phone incident to an individual's arrest.
Harry H. Professor Philip Bobbitt defines a modality for interpreting the Constitution as "the way in which we characterize a form of expression as true. See also Richard H.
Fallon, Jr. Madison —implies a power to determine the sources of authority on which constitutional rulings properly rest. The President appoints the Justices of the Supreme Court, who serve for life terms unless impeached and removed from office. And it is the judges who determine those needs and 'find' that changing law. Richard H. William J. Brennan, Jr. Those who would restrict claims of right to the values of specifically articulated in the Constitution turn a blind eye to social progress and eschew adaption of overarching principles to changes of social circumstance.
Stephen Breyer, Active Liberty 25 "[O]ur constitutional history has been a quest for. See Laurence H. Modes of interpretation are means—however intricate—of explicating this subject and substance.
As discussed below, whether any particular source of meaning may serve as a proper basis for interpreting the Constitution is subject to debate. This report does not examine the potential role of politics in judicial decisionmaking. This report does not provide an exhaustive list of the modes of interpretation.
There is unlikely to be agreement on which methods such a list would include. See Bobbitt, supra note 22, at 8. See also Fallon, supra note 15, at ; Sunstein, supra note 9, at 95 "It is impossible to interpret any written text without resort to principles external to that text. For example, in New York v. United States , the Court held that Congress could not directly compel states to participate in a federal regulatory program.
In so holding, the majority opinion relied upon the text of the Tenth Amendment; historical sources; the structural relationship that the Constitution establishes between the federal government and states; and judicial precedent, among other sources. VI "The Senators and Representatives before mentioned, and the Members of the several State legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Fulfilling this oath requires Members of Congress to read and understand the nation's founding document. See also Nixon v. United States, U. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions.
Sawyer, U. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. Sometimes they laid down broad principles.
Either way we apply what they say, what they meant to do. So in that sense, we are all originalists. Dep't of Justice, to Elaine C. For additional examples of the Court's use of a textualist approach, see " Original Meaning " below. Chemerinsky, supra note 7, at 16; Tribe, supra note 12, at 2—4; Sotirios A. Barber, On What the Constitution Means 9 Justice William Brennan, providing the fifth and deciding vote in Trop , did not base his decision on the Eighth Amendment, instead concluding that denationalization exceeded Congress's war powers.
Justice Black once wrote that the First Amendment's statement that "Congress shall make no law. Hugo L. If the Court will not agree with him, why not argue his case to some other group, say the Joint Chiefs of Staff, a body with rather better means for enforcing its decisions? No answer exists.
Actually there are plenty of answers, and one is that Bork is posing a false dichotomy: a court committed to originalism versus a court that a "naked power organ;" blind obedience versus rebellion. These dichotomies imply, implausibly, that the only method of justification available to a court, the only method of channeling judicial discretion and thus of distinguishing judges from legislators, is the originalist.
No other method-one that emphasizes natural justice, sound justice, social welfare, or neutral but not necessarily originalist principles-so much as exists. If one may judge by the evidence that Bork arrays, the Court has since the beginning strayed repeatedly from the originalist path, yet the Joint Chiefs or their predecessors have never tried to take over the government.
Nor are they likely to try. A contract induces, reliance that can make a strong claim for protection; it also frees people from having continually to reexamine and revise the terms of the relationship.
These values are independent of whether the original contracting parties are still alive. But a long-term contract is bound eventually to require, if not formal modification which in the case of the Constitution can be accomplished only through the amendment, process , then flexible interpretation, to cope effectively with altered, circumstances. Modification and interpretation are reciprocal; the more difficult it is to modify the instrument formally, the more exigent is flexible interpretation.
Bork is aware of the practical impediments to amending the Constitution but is unwilling to draw the inference that flexible interpretation is therefore necessary to prevent constitutional obsolescence.
But although judges are not immune from the all too human tendency to deny responsibility for actions that cause pain, the significance of this fact is another matter. It is a considerable paradox to suggest that these reasons which uncandid judges give for their actions are the only legitimate grounds for judicial action. If the result-oriented or activist judge is queasy about the title deeds of his rulings, the originalist is on the evidence of The Tempting of America , at any rate queasy about the consequences of originalist rulings.
And rightly so. A theory of constitutional interpretation that ignores consequences is no more satisfactory than one that ignores the political importance of building a bridge between the contemporary judge's pronouncement and some authoritative document from the past. It is difficult to argue to Americans that in evaluating a political theory they should ignore its practical consequences. Bork is not prepared to make such an argument. He continually reassures the reader that originalism does not yield ghastly results, while at the same time denouncing judges who are "result-oriented.
The pragmatist places the consequences of his decisions in the foreground. The pragmatist judge does not deny that his role in interpreting the Constitution is interpretive. He is not a lawless judge. He does not, in order to do short-sighted justice between the parties, violate the Constitution and his oath, for he is mindful of the systemic consequences of judicial lawlessness.
Like Samuel Lipman's ideal conductor, however, the pragmatist judge believes that constitutional interpretation involves the empathic projection of the judge's mind and talent into the creative souls of the framers rather than slavish obeisance to the framers' every metronome marking.
In the capacious, forward-looking account of interpretation that I am calling pragmatic, the social consequences of alternative interpretations often are decisive; to the consistent originalist, if there were such a person, they would always be irrelevant.
The people are entitled to ask what the benefits to them of originalism would be, and they will find no answers in The Tempting of America. If, to echo Samuel Lipman again, orginalism make bad music despite or perhaps because of its scrupulous historicity, why should the people listen to it?
Poll Question To participate in the poll, go to this url: www. Further Reading. Eight Reasons to be an Originalist 1. Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives.
Originalism in the long run better preserves the authority of the Court. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria. Lochner vs. New York widely considered to be a bad non-originalist decision. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.
Originalism better respects the notion of the Constitution as a binding contract. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.
If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives.
There is no other sense in which the Constitution can be what article VI proclaims it to be: "Law Any time he does so, he violates not only the limits to his own authority but, and for that reason, also violates the rights of the legislature and the people Introduction There are five 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 question, 3 prior precedents usually judicial , 4 the social, political, and economic consequences of alternative interpretations, and 5 natural law.
There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions.
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