Methodologies | Constitution 101

0:00[Music] today we're going to talk about how to interpret the constitution and to do that we need to learn to separate our political from our constitutional views in other words we have to ask not what we think the government should do but what the constitution allows or forbids it to do and to answer that question we've got to learn how to think like judges and we've got to learn the methodologies of constitutional interpretation now there are seven of those methodologies and we're going to go through each of them so we've got them under our belts here we go one text two history three tradition four precedent five structure six prudence and seven natural law let's begin with text when a judge is a textualist she reads

1:07the words of the constitution or of a statute or law and looks at the common understanding of what those words would have meant to a reasonable reader at the time the words were written let's begin with a very important constitutional text the first amendment it says congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press now justice hugo black was a famous textualist in the 20th century and he used to hold up his constitution and say no law means no law he interpreted the constitution and the first amendment to say that even hateful speech is protected unless it's intended to and likely to incite imminent violence our second methodology is called history other folks call it a jurisprudence of original understanding or original

2:08meaning what does it mean to be an originalist who takes constitutional history seriously well an originalist judge looks at the historical context and original public meaning of a given provision of the constitution at the time that it was framed and ratified for a good example of an originalist decision we can look at the district of columbia versus heller decision from 2008 where justice scalia wrote for the supreme court the second amendment was originally understood to be an individual right of self-defense and was not limited to militia service justice scalia reached that conclusion by looking to the original understanding of the framers and ratifiers of the second amendment it's really important that we look not at what the framers like james madison

2:59thought alone but also at what the ratifiers that is the people who ratified every provision of the constitution um in constitutional conventions thought and that's because the constitution didn't gain the status of supreme law until it was ratified in the name of we the people our third methodology is called tradition if the historical approach is a snapshot of what the framers and ratifiers thought at a particular moment in time the moment of ratification in 1788 for the original constitution or 1868 for the 14th amendment the tradition-based approach is more of a wide-angle lens it looks at the evolving traditions and collective conscience of our people across time so a good example of a tradition-based approach

3:48which looks to laws and customs and practices over the entire course of american history would be a case called griswold versus connecticut from 1965. that case ruled that married couples have a right to use contraceptives in their home and in reaching that conclusion in his separate opinion justice john marshall harlan ii said connecticut is the only state in the union in 1965 that bans the use of contraceptives for married couples and therefore we can conclude that a tradition has developed in this country for protecting the rights of marital privacy that's the tradition-based approach and just to review you understand the originalist says what did the framers and ratifiers think in 1787 and 1788 the tradition-based approach says what did the collective conscience and traditions of our people say over the

4:40entire course of american history from the beginning until the time of the decision our next methodology is precedent judges who follow precedent apply the reasoning in previous cases to new situations respecting precedent can promote values like prudence stability and the rule of law so when do judges choose to overturn presidents well a famous example is the dobbs case that was the case that in 2022 overturned roe v wade the case that had recognized a right to choose abortion in 1973.

5:15the majority opinion in dobbs came up with five questions to ask whether or not a precedent should be overturned first the nature of the court's error second the quality of the reasoning third was the precedent workable fourth the effect on other areas of law and fifth reliance interest had expectations gathered around the decision and had people organize their lives in reliance on it so those are the kind of things that courts look at in deciding whether or not to overturn precedence our next methodology is called structure a judge reads the constitution as a whole and infers structural principles from it like federalism or separation of powers a famous example of a structuralist decision is youngstown sheet and tube versus sawyer in 1952 president harry truman wanted to

6:13seize the steel mills and he issued an executive order in the middle of the korean war invoking his authority as commander-in-chief and the supreme court said you can't do that justice robert jackson's separate opinion is a great example of constitutional structuralism justice jackson said executive orders aren't explicit in the text of the constitution and the president's power to issue them is at its height when congress has explicitly authorized the executive action in question the president's power is at its lowest point when congress has said you can't do that and when congress hasn't spoken the president acts in a kind of zone of twilight [Music] now it's not clear whether he can act or not in this zone of twilight so that's a

7:01structural decision our next methodology is prudence uh also sometimes called pragmatism a judge seeks to balance the costs and benefits of a particular ruling when she weighs prudential consequences including its practical consequences and might also consider the judge's view about the proper scope of judicial power so what's a famous prudential decision brown versus board of education of topeka in 1955 said that schools had to be integrated with all deliberate speed in other words not immediately but as soon as convenient as it turned out southern states took that invitation as an invitation to delay and schools were not meaningfully desegregated for nearly a decade after that decision which is known as brown two

7:52but the court reached that decision on the prudential grounds that the south might massively resist and refuse to integrate and that would call the court's legitimacy into question concerns about the court's legitimacy are also prudential and pragmatic concerns we've got just one methodology left and in some way it's the kitchen sink category it's the broadest one it's called natural law or morality some judges think it's appropriate to draw on principles of moral reasoning whether embedded in the natural law tradition that inspired the founders or drawn from their own moral or philosophical judgments one of the oldest examples of natural law reasoning is a case called calder vs bull from 1798 and justice chase in that case said a government doesn't have the power to

8:42violate the natural laws of a civilized society the most famous example of natural law reasoning in american history is of course the declaration of independence which says we hold these truths to be self-evident that all men are created equal and that they are endowed by their creator with certain unalienable rights what's an unalienable right it's a natural right that comes from god or nature from our creator not from government and we can't alienate or surrender those rights to society even if we want to because they're inherent in who we are the natural law approach would say government can't violate unalienable rights whether they're written down in the constitution or not because again these rights don't come from the constitution they come from god or nature

9:31other proponents of moral reasoning think it's appropriate to look at present day moral philosophers whether conservative or liberal in informing a judge's judgment so we've got through all the methodologies let's review them here we go first text second history third tradition fourth precedent fifth structure sixth prudence seventh natural law and now you know the seven main methodologies of constitutional interpretation [Music]