Sample: American Constitutional Law

Sampled below is the Preface and Chapter One from American Constitutional Law, Volume I and  American Constitutional Law, Volume II, Tenth Edition, by Ralph A. Rossum and G. Alan Tarr.

Request an examination copy of both volumes

This text is copyright © 2017 by WESTVIEW PRESS

Please be aware that this is not the final manuscript—some typos and grammatical errors may be present—but we hope that this advance look will help you determine whether the content and writing style will appeal to you and your students.


Table of Contents

Volume I:

Note to the Reader

1. Interpretation of the Constitution
2. Constitutional Adjudication
3. The Judicial Power
4. The Legislative Branch
5. The Executive Branch
6. War and Foreign Affairs
7. Federalism
8. The Exercise of National Power
9. The Exercise of State Power
10. The Constitution and Native American Tribes
11. The Contract Clause
12. Economic Due Process and the Takings Clause
The Constitution of the United States of America
Justices of the Supreme Court
Glossary of Common Legal Terms
Table of Cases

Volume II:

Note to the Reader

1. Interpretation of the Constitution
2. Constitutional Adjudication
3. Rights under the Constitution
4. Economic Due Process and the Takings Clause
5. Freedom of Speech, Press, and Association
6. Freedom of Religion
7. Criminal Procedure
8. The Equal Protection Clause and Racial Discrimination
9. Substantive Equal Protection
10. Voting and Representation
11. The Right to Privacy
The Constitution of the United States of America
Justices of the Supreme Court
Glossary of Common Legal Terms
Table of Cases

Expanded Table of Contents - Volume I

Expanded Table of Contents – Volume I

Note to the Reader

1 Interpretation of the Constitution

Approaches to Constitutional Interpretation
The Approaches in Perspective
The Ends of the Constitution
Constitutional Means to Constitutional Ends
Selected Readings

2 Constitutional Adjudication

The Justices of the Supreme Court
The Supreme Court in the Federal Judicial System
How Cases Get to the Supreme Court
How the Supreme Court Decides Cases
The Impact of Supreme Court Decisions
Analyzing Supreme Court Decisions
Selected Readings

3 The Judicial Power

The Power of Judicial Review
Externally Imposed Restraints on Judicial Review
Court-Imposed Restraints on Judicial Review
The Expanding Role of the Courts
The Courts, Judicial Review, and the Problem of Legitimacy
Selected Readings
Marbury v. Madison (1803)
Eakin v. Raub (1825)
Cooper v. Aaron (1958)
Plaut v. Spendthrift Farm, Inc. (1995)
Ex parte McCardle (1869)
Lujan v. Defenders of Wildlife (1992)
Hein v. Freedom from Religion Foundation (2007)
Luther v. Borden (1849)
Baker v. Carr (1962)
Nixon v. United States (1993)
Deshaney v. Winnebago County Department of Social Services (1989)

4 The Legislative Branch

The Scope of Congressional Power
Powers That Facilitate Legislative Activity
Nonlegislative Powers
Safeguarding Legislative Power
Selected Readings
McCulloch v. Maryland (1819)
United States v. Comstock (2010)
Powell v. McCormack (1969)
U.S. Term Limits, Inc. v. Thornton (1995)
Gravel v. United States (1972)
McGrain v. Daugherty (1927)
Watkins v. United States (1957)
Schechter Poultry Corporation v. United States (1935)
Mistretta v. United States (1989)
Immigration and Naturalization Service v. Chadha (1983)

5 The Executive Branch

The Aims of the Framers
Grants of Power and Their Use
Implied Powers
Prerogative Powers
Selected Readings
National Labor Relations Board v. Noel Canning (2014)
Myers v. United States (1926)
Morrison v. Olson (1988)
United States v. Nixon (1974)
Clinton v. Jones (1997)
In re Neagle (1890)
Youngstown Sheet & Tube Company v. Sawyer (1952)

6 War and Foreign Affairs

The Interbranch Distribution of Power
The Foundation and Extent of the Foreign-Affairs Power
War and Individual Rights
Selected Readings
The Prize Cases (1863)
The War Powers Resolution (1973)
Authorization for Use of Military Force (2001)
United States v. Curtiss-Wright Export Corporation (1936)
Missouri v. Holland (1920)
Medellin v. Texas (2008)
Zivotofsky v. Kerry (2015)
Ex parte Milligan (1866)
Korematsu v. United States (1944)
Ex parte Quirin (1942)
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (2001)
Hamdi v. Rumsfeld (2004)
Boumediene v. Bush (2008)

7 Federalism

Federalism and the Founding
Federalism and the First Congress
Federalism and the Marshall Court
Federalism and Its Protection by Subsequent Courts
The Post–Civil War Amendments and the Shifting of the Federal Balance
Selected Readings
The Judiciary Act of 1789
Cohens v. Virginia (1821)
Coyle v. Smith (1911)
Baldwin v. Montana Fish and Game Commission (1978)
Dred Scott v. Sandford (1857)
New York v. United States (1992)
Printz v. United States (1997)
Alden v. Maine (1999)
The Civil Rights Cases (1883)
Jones v. Alfred H. Mayer Company (1968)

8 The Exercise of National Power

The Commerce Power
The Taxing Power
The Spending Power
Health Care and the Constitution
Limitations on National Power
Selected Readings
Gibbons v. Ogden (1824)
United States v. E. C. Knight Company (1895)
Hammer v. Dagenhart (1918)
National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937)
Wickard v. Filburn (1942)
Heart of Atlanta Motel v. United States (1964)
Garcia v. San Antonio Metropolitan Transit Authority (1985)
United States v. Lopez (1995)
Gonzales v. Raich (2005)
United States v. Butler (1936)
United States v. Kahriger (1953)
South Dakota v. Dole (1987)
National Federation of Independent Business v. Sebelius (2012)

9 The Exercise of State Power

Constitutional Principles
Negative Implications of the Commerce Clause
State Regulation and the Modern Court
The Role of the Court
Selected Readings
Arizona v. United States (2012)
Cooley v. Board of Wardens (1852)
Southern Pacific Company v. Arizona (1945)
Granholm v. Heald (2005)
Comptroller of the Treasury of Maryland v. Wynne (2015)

10 The Constitution and Native American Tribes

Native American Tribes and the New Republic
Tribal Sovereignty and the Marshall Trilogy
Tribal Self-Determination
Tribal Authority over Disposition of Lands
Tribal Authority to Institute a Government
Tribal Authority to Enter into Treaties
Tribes and Their Relation to the States
Tribal Authority to Administer Justice
Tribal Authority to Engage in “Indian Gaming”
The Continued Viability of the Canons of Construction of
Federal Indian Law?
Selected Readings
Johnson v. McIntosh (1823)
Cherokee Nation v. Georgia (1831)
Worcester v. Georgia (1832)
United States v. Kagama (1886)
Lone Wolf v. Hitchcock (1903)
Public Law 280 (1953)
United States v. Lara (2004)
California v. Cabazon Band of Mission Indians (1987)
Adoptive Couple v. Baby Girl (2013)

11 The Contract Clause

Marshall’s Expansion of the Contract Clause
The Decline of the Contract Clause
A Continued Relevance?
Selected Readings
Fletcher v. Peck (1810)
Dartmouth College v. Woodward (1819)
Charles River Bridge Company v. Warren Bridge Company (1837)
Home Building and Loan Association v. Blaisdell (1934)
United States Trust Company v. New Jersey (1977)
Taylor v. City of Gadsden (2013)

12 Economic Due Process and the Takings Clause

The Fourteenth Amendment
The Evisceration (and Possible Recent Restoration?) of the Privileges or Immunities Clause
Economic Regulation and the Rise of Substantive Due Process
The Demise of Substantive Due Process in the Economic Realm
Punitive Damages: An Exception to the Demise of Substantive Due Process in the Economic Realm?
The Emergence of Substantive Due Process in the Civil Liberties Realm
The Takings Clause
Selected Readings
The Slaughter-House Cases (1873)
Munn v. Illinois (1877)
Lochner v. New York (1905)
West Coast Hotel Company v. Parrish (1937)
Williamson v. Lee Optical Company (1955)
State Farm Mutual Automobile Insurance Company v. Campbell (2003)
United States v. Carolene Products Company (1938)
Kelo v. City of New London (2005)
Horne v. Department of Agriculture (2015)
Nollan v. California Coastal Commission (1987)
Lucas v. South Carolina Coastal Council (1992)
Koontz v. St. Johns River Water Management District (2013)

The Constitution of the United States of America
Justices of the Supreme Court
Glossary of Common Legal Terms

Expanded Table of Contents - Volume II

Expanded Table of Contents – Volume II

Note to the Reader

1 Interpretation of the Constitution

Approaches to Constitutional Interpretation
The Approaches in Perspective
The Ends of the Constitution
Constitutional Means to Constitutional Ends
Selected Readings

2 Constitutional Adjudication

The Justices of the Supreme Court
The Supreme Court in the Federal Judicial System
How Cases Get to the Supreme Court
How the Supreme Court Decides Cases
The Impact of Supreme Court Decisions
Analyzing Supreme Court Decisions
Selected Readings

3 Rights Under the Constitution

Rights and the Founding
The Fourteenth Amendment
Due Process and the Bill of Rights
Rights During Wartime and Other Emergencies
The Second Amendment
Selected Readings
Barron v. Baltimore (1833)
Palko v. Connecticut (1937)
Adamson v. California (1947)
Duncan v. Louisiana (1968)
Ex parte Milligan (1866)
Korematsu v. United States (1944)
Hamdi v. Rumsfeld (2004)
Boumediene v. Bush (2008)
District of Columbia v. Heller (2008)
McDonald v. Chicago (2010)

4 Economic Due Process and the Takings Clause

The Fourteenth Amendment
The Evisceration (and Possible Recent Restoration?) of the Privileges or Immunities Clause
Economic Regulation and the Rise of Substantive Due Process
The Demise of Substantive Due Process in the Economic Realm
Punitive Damages: An Exception to the Demise of Substantive Due Process in the Economic Realm?
The Emergence of Substantive Due Process in the Civil Liberties Realm
The Takings Clause
Selected Readings
The Slaughter-House Cases (1873)
Munn v. Illinois (1877)
Lochner v. New York (1905)
West Coast Hotel Company v. Parrish (1937)
Williamson v. Lee Optical Company (1955)
State Farm Mutual Automobile Insurance Company v. Campbell (2003)
United States v. Carolene Products Company (1938)
Kelo v. City of New London (2005)
Horne v. Department of Agriculture (2015)
Nollan v. California Coastal Commission (1987)
Lucas v. South Carolina Coastal Council (1992)
Koontz v. St. Johns River Water Management District (2013)

5 Freedom of Speech, Press, and Association

The Meaning of the First Amendment
First Amendment Standards
Political Expression
The Regulation of Speech and Association
Restraints on the Press
Libel and the Invasion of Privacy
Obscenity and Video Games
Selected Readings
Gitlow v. New York (1925)
Schenck v. United States (1919)
Dennis v. United States (1951)
Barenblatt v. United States (1959)
Brandenburg v. Ohio (1969)
Holder v. Humanitarian Law Project (2010)
Citizens United v. Federal Election Commission (2010)
Texas v. Johnson (1989)
R. A. V. v. City of St. Paul (1992)
Walker v. Texas Division, Sons of Confederate War Veterans, Inc. (2015)
McCullen v. Coakley (2014)
Near v. Minnesota (1931)
New York Times Company v. United States (1971)
Branzburg v. Hayes (1972)
New York Times v. Sullivan (1964)
Reno v. American Civil Liberties Union (1997)
Indianapolis Anti-Pornography Ordinance (1984)
Brown v. Entertainment Merchants Association (2011)

6 Freedom of Religion

Establishment of Religion
Free Exercise of Religion
Reconciling the Religion Clauses
Selected Readings
Everson v. Board of Education (1947)
School District of Abington Township v. Schempp (1963)
Lemon v. Kurtzman (1971)
Wallace v. Jaffree (1985)
Lee v. Weisman (1992)
McCreary County v. American Civil Liberties Union (2005)
Van Orden v. Perry (2005)
Rosenberger v. University of Virginia (1995)
Zelman v. Simmons-Harris (2002)
West Virginia Board of Education v. Barnette (1943)
Sherbert v. Verner (1963)
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
City of Boerne v. Flores, Archbishop of San Antonio (1997)
Burwell v. Hobby Lobby Stores, Inc. (2014)

7 Criminal Procedure

The Ex Post Facto Clauses
Search and Seizure
Self-Incrimination and Coerced Confessions
Due Process of Law
The Right to Counsel
The Insanity Defense
The Entrapment Defense
Trial by Jury
The Right to a Speedy Trial
The Right to Confrontation
Plea Bargaining
Bail and Pretrial Detention
Cruel and Unusual Punishments
Prisoners’ Rights
Retroactive Application of Criminal Procedure Guarantees
Basic Themes in the Court’s Criminal Procedure Decisions
Selected Readings
Stogner v. California (2003)
Smith v. Doe (2003)
Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002)
Los Angeles v. Patel (2015)
Maryland v. King (2013)
Riley v. California (2014)
Mapp v. Ohio (1961)
Olmstead v. United States (1928)
Katz v. United States (1967)
Miranda v. Arizona (1966)
Nix v. Williams (1984)
Connecticut Department of Public Safety v. Doe (2003)
Powell v. Alabama (1932)
Gideon v. Wainwright (1963)
Blakely v. Washington (2004)
Michigan v. Bryant (2011)
Gregg v. Georgia (1976)
Kennedy v. Louisiana (2008)
Roper v. Simmons (2005)
Miller v. Alabama (2012)
Harmelin v. Michigan (1991)
Ewing v. California (2003)

8 The Equal Protection Clause and Racial Discrimination

Race and the Founding
Racial Desegregation
Private Discrimination and the Concept of State Action
Racial Discrimination in Jury Trials
Racial Discrimination in Prisons
Proof of Discrimination: Disparate Treatment Versus Disparate Impact
Selected Readings
Plessy v. Ferguson (1896)
Brown v. Board of Education (1954)
Bolling v. Sharpe (1954)
Brown v. Board of Education (1955)
Swann v. Charlotte-Mecklenburg Board of Education (1971)
United States v. Fordice (1992)
Missouri v. Jenkins (1995)
Shelley v. Kraemer (1948)
Moose Lodge No. 107 v. Irvis (1972)
Georgia v. McCollum (1992)
The Civil Rights Act of 1991
Ricci v. DeStefano (2009)

9 Substantive Equal Protection

The Two-Tier Approach
The Development of an Intermediate Level of Review
Suspect Classifications
Fundamental Rights
The Future of Equal-Protection Analysis
Selected Readings
Richmond v. J. A. Croson Company (1989)
Adarand Constructors, Inc. v. Peña (1995)
Grutter v. Bollinger (2003)
Gratz v. Bollinger (2003)
Parents Involved in Community Schools v. Seattle School District No. 1 (2007)
Massachusetts Board of Retirement v. Murgia (1976)
Frontiero v. Richardson (1973)
United States v. Virginia (1996)
Rostker v. Goldberg (1981)
Shapiro v. Thompson (1969)
San Antonio Independent School District v. Rodriguez (1973)

10 Voting and Representation

Equal Protection and the Right to Vote
Race and Representation: The Fifteenth Amendment and the
Voting Rights Act
Selected Readings
Wesberry v. Sanders (1964)
Reynolds v. Sims (1964)
Vieth v. Jubelirer (2004)
Harper v. Virginia State Board of Elections (1966)
Crawford v. Marion County Election Board (2008)
Bush v. Gore (2000)
Katzenbach v. Morgan (1966)
Shaw v. Reno (1993)
Shelby County v. Holder (2013)

11 The Right to Privacy, Personal Autonomy, and Dignity

The Constitutional Basis
What the Right to Privacy Protects
Qualifications on the Right to Privacy
Personal Autonomy and the Right to Die
Selected Readings
Troxel v. Granville (2000)
Griswold v. Connecticut (1965)
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Gonzales v. Carhart (2007)
Lawrence v. Texas (2003)
Defense of Marriage Act of 1996
Obergefell v. Hodges (2015)
Cruzan v. Director, Missouri Department of Health (1990)
Washington v. Glucksberg (1997)
Vacco v. Quill (1997)

The Constitution of the United States of America
Justices of the Supreme Court
Glossary of Common Legal Terms
Table of Cases



American Constitutional Law, Tenth Edition, is designed as a basic text for courses in national powers and civil liberties. This substantially revised and updated edition features the major constitutional controversies and cases either not included in, or decided since the publication of, the Ninth Edition. This is perhaps our most extensive revision of the casebook from one edition to another; we have added sixteen new cases and deleted and moved twenty-six cases to our new website (www.westviewconlaw.com).

Volume I now includes: National Labor Relations Board v. Noel Canning (2014), which restricted the president’s power to make recess appointments; Zivotofsky v. Kerry (2015), which affirmed the president’s exclusive power to recognize foreign states; Comptroller of the Treasurer of Maryland v. Wynne (2015), which reflected the Court’s continued embrace of the dormant commerce clause; Adoptive Couple v. Baby Girl (2013), which revealed the Court’s increasing willingness to depart from the standard canons of construction of federal Indian law; Taylor v. City of Gadsden (2013), in which a federal district judge rejected a contract clause objection to a city’s changes in the public pensions of police and fire personnel; and Horne v. Department of Agriculture (2015) and Koons v. St. Johns River Management District (2013)—two recent Takings Clause cases.

Volume II now includes: McDonald v. Chicago (2010), which incorporated the Second Amendment to apply to the states; Walker v. Texas Division, Sons of Confederate Veterans Inc. (2015) and McCullen v. Coakley (2014), both of which addressed free speech issues; Burwell v. Hobby Lobby Stores Inc. (2014), which concerned the protection of religious liberty; Los Angeles v. Patel (2015), Maryland v. King (2014), and Riley v. California (2014), all of which dealt with Fourth Amendment questions; Shelby County v. Holder (2013), which found Section 4 of the Voting Rights Act unconstitutional, and Obergefell v. Hodges (2015), the Court’s landmark decision regarding same-sex marriage.

As in previous editions, our approach to these subjects is based on three major premises. First, the study of the Constitution and constitutional law is of fundamental importance to a full and coherent understanding of the principles, prospects, and problems of America’s democratic republic. Cases should be examined not merely to foster an appreciation of what court majorities have thought of particular issues at certain points in time (although that is obviously important), but also to gain a deeper and fuller understanding of the principles at the very heart of the American constitutional system. To that end, this text emphasizes precedent-setting cases and presents comprehensive expositions of alternative constitutional positions. Substantial excerpts from cases and other constitutionally significant pronouncements have been included so that students can grapple with the arguments and justifications for these alternative positions. To ensure that the best arguments on all sides of a constitutional question are presented, we have included extensive extracts of both concurring and dissenting opinions.

Second, no interpretation of the Constitution can be evaluated properly without an appreciation of what those who initially drafted and ratified the Constitution sought to accomplish. The text incorporates documentary evidence in seeking to identify and explain the original purposes of the Constitution and the means provided for the achievement of those purposes. This inquiry into the Framers’ understanding of the Constitution, in turn, furnishes one of the criteria for evaluating judicial decisions and constitutionally significant pronouncements from the executive and legislative branches.

Third, the study of the Constitution involves much more than an examination of its judicial interpretation. The Constitution is not merely what the Supreme Court says it is; its words are not so many empty vessels into which justices can pour meaning. Accordingly, this volume examines the interpretations of a variety of sources. The original intent of the framers, the original understanding of the ratifiers, and the original public meaning of the words and phrases of the Constitution are important sources. Another, equally indispensable source is, of course, the Supreme Court, whose decisions have influenced so profoundly our understanding of the Constitution and its principles. And because other governmental bodies have contributed significantly to the overall interpretation of the Constitution, this text includes decisions of the lower federal courts and state judiciaries and also extrajudicial materials of constitutional significance such as certain congressional acts and resolutions and executive orders.

As we approach constitutional questions throughout this text, we begin by turning to the Framers. We do so, however, not so much for specific answers as for general guidance concerning what the Constitution was designed to accomplish. Obviously, no interpretation can be expected to conform strictly to the expectations of the Framers. Other legitimate approaches may also contribute to an understanding of the Constitution, relying variously on analysis of the text itself, judicial precedent, constitutional doctrine, logical reasoning, adaptation of constitutional provisions to changing circumstances, and a concern for the consequences of any particular decision. All these approaches are described in Chapter 1.

The structure of the volumes might be seen as a reflection of James Madison’s observation in The Federalist, No. 51, that “in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place; oblige it to control itself.” Chapter 1 explores in general how the Constitution was designed to resolve this difficulty, and Chapter 2 introduces the reader to the actual process of constitutional adjudication. The remainder of this two-volume work systematically examines how the Constitution and its amendments not only grant the national and state governments sufficient power to control the governed but also oblige these governments to control themselves. Chapters 3 through 6 of Volume I consider the distribution of power in the national government, specifically exploring how the constitutional scheme of separation of powers and checks and balances both grants and controls power. Because of the importance of the distribution of power among the branches of the national government, we devote separate chapters to the judiciary, Congress, the presidency, and war and foreign affairs. Chapters 7 through 11 of Volume I consider the distribution of power between the national government and the states and between the national government and Native American tribal governments, focusing on how the division of power among various governments in the United States helps to advance the ends of the Constitution. Chapter 12 (also included as Chapter 4 in Volume II) and Chapters 3 through 11 of Volume II shift to an examination of the distribution of power between the government and the individual. The emphasis in these chapters is not so much on institutional contrivances that oblige the government to control itself as on the Bill of Rights and those subsequent amendments that guarantee specific rights and liberties, an emphasis that illuminates the way in which our most precious rights and liberties have increasingly become dependent for their vindication not upon constitutional structure but upon what The Federalist called mere “parchment barriers.”

With the exception of the first two chapters, each chapter opens with an introductory essay that is then followed by cases and, where appropriate, extrajudicial materials. Each essay ends with extensive notes that provide valuable explanatory details and references to additional materials and a list of suggested readings, including essays in The Federalist, additional cases, and scholarly books and articles. Each case also has its own introductory headnote, which provides historical perspective, indicates where the case stands in relation to current law, and gives the final court vote. Some cases have endnotes that elaborate on the short- and long-term consequences of the decision. The text includes three appendixes: the Constitution of the United States, a list of Supreme Court justices, and a table of cases.

We encourage our readers to visit our newly revamped and updated website at westviewconlaw.com for additional cases and other resources in understanding the Supreme Court and constitutional law, including links to primary sources and relevant blogs and websites. The additional cases, numbering more than 150 and formatted identically to those included in the casebooks, are organized by volume and chapter. With the exceptions of Chapters 1 and 2, each of the chapters will have the deleted cases found in past editions, cases that we edited for the website in the past but were never included in subsequent editions, and new cases decided after the publication of the Tenth Edition. Check back every September for new cases and updated resources.

We would like to thank the excellent editorial staff at Westview Press for so smoothly and efficiently bringing the Tenth Edition into print. We express particular gratitude to Senior Editor Ada Fung; Associate Managing Editor Krista Anderson; our project editor, Cisca Schreefel; and our copyeditor, George DeStefano. We would also like to thank the peer reviewers who provided us with helpful and insightful feedback, including: Joseph Knippenberg (Oglethorpe University); Vincent Muñoz (University of Notre Dame); Michael Zarkin (Westminster College); and the many others who wished to remain anonymous.

Any errors of fact or interpretation are, of course, solely our responsibility. Finally, we wish to express our gratitude to our wives, Constance and Susan, for their patience, understanding, and loving support throughout this decades-long project.

Ralph A. Rossum

G. Alan Tarr

Chapter 1

Interpretation of the Constitution

Chapter Outline

We are under a Constitution, but the Constitution is what the Court says it is.”[1] In the century since Charles Evans Hughes, then governor of New York and later chief justice of the United States Supreme Court, uttered these now famous words, they have been repeated so often and in so many contexts that they have assumed a prescriptive as well as a descriptive character. But exactly how valid is this prescription for understanding the US Constitution?

Hughes’s observation certainly contains some truth. Many provisions of the Constitution are not self-defining and so have been the objects of judicial interpretation and construction. Various criminal procedural protections found in Amendments Four through Eight immediately spring to mind. What, after all, makes a particular search or seizure “unreasonable”? What is sufficient to establish “probable cause”? What constitutes “due process of law”? What is a “speedy” trial? What is an “excessive” fine or bail? What is “cruel and unusual punishment”? Hughes’s claim also portrays accurately the perspective of lower-­court judges and practicing attorneys. However erroneous they might believe the Supreme Court’s understanding of a particular constitutional provision, lower-court judges feel obliged to adhere to the Court’s interpretation. And lawyers usually seek to accomplish their objectives within the framework of the prevailing Court view rather than attempting to convince the justices to abandon that view.

Yet, Hughes’s assertion is also misleading in several respects. Above all, it fails to recognize that governmental bodies other than the Supreme Court also contribute to an overall interpretation of the Constitution. By passing the War Powers Resolution of 1973, for example, the US Congress undertook to define the constitutional limits of the president’s powers to initiate and conduct undeclared war, an issue the Supreme Court has refused to consider. Likewise, in the Speedy Trial Act of 1984, Congress took upon itself constitutional interpretation in the sphere of criminal procedure, declaring that a defendant not brought to trial within one hundred days of arrest can move for a dismissal of the charges. In so doing, it gave meaning to a constitutional provision that the Supreme Court itself has acknowledged to be vaguer than any other procedural right. And in the Voting Rights Act of 1982, Congress held that the Fifteenth Amendment (barring states from denying citizens the right to vote “on account of race, color, or previous condition of servitude”) bans not only intentional discrimination against the voting rights of minorities (what the Supreme Court had held) but any electoral scheme that has the effect of preventing minority voters from electing “representatives of their choice.” Constitutionally significant pronouncements have also emanated from the executive branch and from the lower federal and state courts. (Statements made by President Abraham Lincoln have had more to do with defining the outer bounds of presidential prerogative than have any statements of the Court, just as actions taken by President Franklin D. Roosevelt altered the balance of power between the national government and the states far more than any judicial opinion.)

Another problem with Hughes’s assertion is that it obscures the extent to which the meaning of the Constitution is clear and uncontroversial. Most constitutional provisions are settled; what questions are raised about them pertain not to fundamental meaning but rather to specific application. Relatively few constitutional provisions have sparked protracted debate and controversy: the Commerce Clause of Article I, Section 8, authorizing Congress to regulate commerce among the several states; the First Amendment’s establishment of religion and free exercise clauses as well as its guarantees of freedom of speech and of the press; the language of the Fifth and Fourteenth Amendments that no person shall be deprived of life, liberty, or property without due process of law; and the Fourteenth Amendment’s pronouncement that no person shall be denied the equal protection of the laws. Although these provisions are extremely important, the intense debate over them tends to obscure how ably the Constitution has governed our political actions for the past two and a quarter centuries. By focusing exclusively on these provisions and arguing, implicitly or explicitly, that they are fundamentally without meaning until construed by the Court, some jurists and legal scholars have reinforced the view that the Constitution is deficient in decisive respects and therefore unworthy of vital public support. As a result, the Constitution is deprived of what James Madison, in The Federalist, No. 49, called “that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” This is of no minor concern, for, as Madison continues, “the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side.”

Still another problem with the view that the Constitution means only what the Court says it means is that it denies that the Constitution is capable of being understood not only by those who made and ratified it but also by those who continue to live under it. As Justice Joseph Story put it in his Commentaries on the Constitution of the United States:

Every word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context provides some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or extraordinary gloss.[2]

In a popular government, the people should take an active interest in the Constitution that gives form to their politics and protection to their liberties; they should not be discouraged from doing so by talk that the Constitution is some obscure document capable of being understood only by Supreme Court justices or by those trained in the law.

A related problem: the view that the Constitution is whatever the Court says it is implies that the Constitution has no meaning in and of itself. If all meaning must be poured into it by the Court, we are unlikely to turn to it for basic instruction on the principles, problems, and prospects of the American regime. The proudest claim of those responsible for framing and ratifying the Constitution was, as stated in The Federalist, No. 10, that it provided “a Republican remedy for the diseases most incident to Republican Government.” If we strip the Constitution of all independent meaning, we are unlikely to remember the Founders’ answers to the basic questions and dilemmas of democratic government—and what is even more regrettable, we are likely to forget the questions themselves.

Yet another effect of presenting the Constitution as devoid of any independent meaning is that it encourages uncritical acceptance of Supreme Court decisions. If the Constitution has only that meaning ascribed to it by the Supreme Court, on what basis, other than subjective preference, can anyone object to the Court’s interpretations? On what constitutional basis, for example, can one object to the Supreme Court’s decisions in Dred Scott v. Sandford (1857), declaring that African Americans could not be citizens, and in Plessy v. Ferguson (1896), upholding racial segregation? Students of the Court implicitly acknowledge this problem by routinely paying lip service to Hughes’s assertion and then criticizing at length judicial interpretations that they find wanting in fidelity to the language of the Constitution, in scholarship, in craftsmanship, or in deference to the popularly elected branches.

Finally, Hughes’s claim ignores the influence that political institutions can have on political behavior. The Court is seen as influencing the Constitution; rarely is the influence that the Constitution might have on the Court, or on politics more generally, even considered.

Approaches to Constitutional Interpretation

To avoid these problems, we will argue, along with Justice Felix Frankfurter, that the “ultimate touchstone of constitutionality is the Constitution itself and not what the [judges] have said about it.”[3] But what, in fact, does the Constitution mean? How are we to understand its provisions and give them effect? In searching for satisfactory answers to these questions, students of the Constitution have proposed several approaches to constitutional interpretation, each of which has its own strengths and weaknesses.[4]

Textual Analysis

One approach to constitutional interpretation involves explicating the constitutional text simply on the basis of the words found there. The basic claim of this approach seems unarguable: if the Constitution is to control the outcome of a case, and if its text is plain, then constitutional interpretation should stop right there. As Justice Noah Swayne observed in United States v. Hartwell (1868): “If the language be clear, it is conclusive. There cannot be construction where there is nothing to construe.”

On today’s Supreme Court, the late Justice Antonin Scalia is most closely associated with the textualist approach. He argued that the Court is to interpret the text alone and nothing else. Thus in Coy v. Iowa (1988), he upheld the right of a defendant, under the Sixth Amendment, literally to “be confronted with the witnesses against him” and overturned his conviction because Iowa law allowed the two thirteen-year-old girls he was charged with sexually assaulting to testify behind a large screen that shielded them from the defendant. For Scalia, the text was unequivocal and governing: “Simply as a matter of English, it confers at least ‘a right to meet face to face all those who appear and give evidence at trial.’ Simply as a matter of Latin as well, since the word ‘confront’ ultimately derives from the prefix ‘con-’ (from ‘contra’ meaning ‘against’ or ‘opposed’) and the noun ‘frons’ (forehead). Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: ‘Then call them to our presence—face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak.’”

Textualism, however, has its limitations. Although many provisions of the Constitution are perfectly clear, others require extensive construction. Consider Article II, section 4, authorizing the impeachment of “the President, Vice President, and all civil officers of the United States” for “high Crimes and Misdemeanors”—a phrase some believe includes not only criminal offenses but also noncriminal behavior amounting to a serious dereliction of duty. Moreover, even if the meanings of all relevant words are perfectly plain, problems of emphasis remain. As Justice Stephen Breyer has noted, “All controversies of importance involve if not a conflict at least an interplay of principles.”[5] In many cases, two or more constitutional provisions come into play, and the justices must decide which is to be given priority. To provide just one example of this problem, consider adverse pretrial publicity in a criminal case. Does the First Amendment guarantee of the freedom of speech and the press supersede the Sixth Amendment guarantee of a trial “by an impartial jury”? As this example indicates, the constitutional text in and of itself cannot resolve all the questions that the Constitution raises.


When textual analysis alone is inadequate, many students of the Constitution turn to previously decided cases, searching for answers on the basis of precedent, or stare decisis (“to stand by decided matters”). That is, they seek guidance from how judges have interpreted a provision in prior cases.

Reliance on precedent, the primary mode of legal reasoning in Anglo-American law, adds stability, continuity, and predictability to the entire legal enterprise. But judges have relied on precedent only sporadically in constitutional law. Very good arguments can be adduced either to adhere to or to depart from precedent. No Supreme Court case presents these opposing arguments better than Payne v. Tennessee (1991), a 5–4 decision that overturned two recent precedents also decided by 5–4 votes—Booth v. Maryland (1987) and South Carolina v. Gathers (1989)—and held that “victim-impact” statements in the penalty stage of capital punishment cases do not violate the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Justice Thurgood Marshall in dissent attacked the Payne majority for departing from precedent, claiming that nothing “has changed since this Court decided both Booth and Gathers” other than “this Court’s own personnel” and concluding that “this truncation of the Court’s duty to stand by its own precedents is astonishing.” Justice Scalia in a concurring opinion replied that what would be truly astonishing is “the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.”

Many jurists and scholars believe that interpreters should look to the Constitution itself, rather than to prior interpretations of that document, in deciding cases. Then, too, constitutional cases deal with momentous social and political issues that only temporarily take the form of litigation, and there is wide recognition that these issues cannot be resolved satisfactorily on the same basis as other legal problems. To some critics, relying on precedent for constitutional interpretation is rather like driving a car down a busy street while looking only through the rearview mirror: we get a good notion of where we have been but not where we should be going. As Thomas Hobbes observed in A Dialogue Between a Philosopher and a Student of the Common Laws of England, “Precedents prove only what was done, but not what was well done.”[6] This difficulty seems especially troublesome in constitutional law. Most areas of law lack clearly defined ends or purposes and so must evolve by way of precedent. The common law, for example, is based mainly on long-­standing usage or judicial precedent. Constitutional law, on the other hand, has before it certain “directions, goals, and ideals” that are easily discernible in the Constitution. Once discerned, these guideposts make it possible for the Court to decide matters of political and social import not in terms of what previous Courts have held, but in light of what is most conducive to achieving the goals or purposes of the Constitution.[7]

Constitutional Doctrine

When neither the constitutional text nor precedent provides an adequate account of the meaning of the Constitution, arguments from “constitutional doctrine” might be raised. Constitutional doctrines are formulas—sometimes nothing more than slogans—extracted from a combination of the constitutional text and a series of related cases. The Equal Protection Clause of the Fourteenth Amendment provides several examples of the development and use of constitutional doctrines. When considered as it applies to questions of race, this clause typically is understood to prohibit discrimination (although the word discrimination is nowhere to be found in the amendment); when considered as it applies to questions of legislative apportionment, it typically is understood to require “one person, one vote” (another phrase not found in the text). Similarly, the First Amendment’s Establishment Clause, which charges Congress to “make no law respecting an establishment of religion,” has been interpreted by many as erecting a high “wall of separation” between church and state. In these illustrations, the enunciated constitutional doctrines serve as mediating principles that stand between specific controversies and the Constitution, giving meaning and content to ideals that may—or may not—be embodied in the text.

Although these examples suggest that constitutional doctrines broaden the scope of the constitutional text they reference, this is not invariably the case. Take the protection against self-incrimination. The Fifth Amendment does not use the term self-­incrimination; rather, it reads: “No person . . . shall be compelled in any criminal case to be a witness against himself.” Unlike certain other reformulations of constitutional provisions, such as “separation of church and state” for the Establishment Clause, “freedom of expression” for “the freedom of speech, or of the press,” and “interstate commerce” for “commerce among the several states,” this reformulation is narrower than the constitutional guarantee itself. Individuals can be witnesses against themselves in ways that do not incriminate them; they can, in criminal cases, injure their civil interests or disgrace themselves. Thus, unlike the constitutional doctrine limiting the Fifth Amendment to “self-incrimination,” the words of the amendment would seem to apply as well to any disclosures that would expose either criminal defendants or witnesses to civil liability or public condemnation.

Over time, many of these doctrines have come to give the constitutional provision in question its only meaning as a guide for decision. This substitution for the original texts may have profound implications. As such doctrines become increasingly important, public debate tends to center on the meaning of the doctrines and not on the meaning of the Constitution itself. In reference to the Equal Protection Clause, for example, the contemporary debate over affirmative action and diversity has focused almost exclusively on such questions as whether this policy is discriminatory against; the question of what “equal protection of the law” truly means has been all but forgotten. Equally disturbing is the fact that reducing constitutional provisions to doctrines often interferes with thoughtful consideration of the constitutional issues.

The “one person, one vote” rule provides a case in point. On only the most elemental level does this rule have meaning; after all, the question of permitting certain voters the opportunity to vote two, five, or ten times has never been raised by any of the legislative reapportionment cases. In Baker v. Carr (1962), for example, the central issue was how much the voter’s one vote was to be worth—a question that moved Justice Frankfurter to ask:

What is this question of legislative apportionment? Appellants invoke the right to vote and have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful—in short, that Tennessee has adopted a basis of representation with which they are not satisfied. Talk of “debasement” or “dilution” is circular talk. One cannot speak of “debasement” or “dilution” of the value of a vote until there is first defined a standard of reference as to what a vote should be worth.

Emphasis on “one person, one vote” merely obscured these questions and added to doctrinal confusion. Because of this problem, Justice Abe Fortas broke from the Court majority in the legislative reapportionment cases, declaring that such “admittedly complex and subtle” matters must be governed by “substance, not shibboleth.” He complained that formulas such as “one person, one vote,” “are not surgical instruments”; rather, “they have a tendency to hack deeply—to amputate.”[8] The ease of applying such formulas may make them attractive, but this may come at the price of clarity in constitutional understanding.

Logical Reasoning

Another approach to constitutional interpretation emphasizes the use of logical reasoning as exemplified in the syllogism, a formal argument consisting of a major premise, a minor premise, and a conclusion.[9] The major premise sets forth a proposition, such as “A law repugnant to the Constitution is void.” The minor premise contains an assertion related to the major premise: “This particular law is repugnant to the Constitution.” From these premises the conclusion logically follows: “This particular law is void.” The foregoing example represents the essence of Chief Justice John Marshall’s reasoning in Marbury v. Madison (1803), which formally established the Court’s power of judicial review (that is, the power to void legislative or executive acts that the Court finds unconstitutional).

Marshall himself was well aware, however, that logical analysis is an insufficient method of interpreting the Constitution. If the validity of the major premise is assumed, the soundness of the conclusion depends on whether what is asserted in the minor premise is true.[10] But logic cannot determine whether a particular law is repugnant to the Constitution. Justice Owen Roberts made things too simple in United States v. Butler (1936) by arguing that “when an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” Whether an act in fact squares with the Constitution is a question that must be left to informed opinion and judgment—informed opinion about the purposes for which the Constitution was established and judgment of as to whether the law in question is consistent with those purposes.

Logical analysis, therefore, must be supplemented with a clear understanding of what The Federalist, No. 10, calls the “great objects” of the Constitution. Even Marshall, the justice most commonly identified with the use of logical analysis, ultimately based his constitutional interpretations on his understanding of the ends the Constitution was designed to serve. Marshall believed that the Constitution points beyond itself to the purposes and policies that it serves; in the difficult (and most interesting) cases, constitutional interpretation must turn upon an understanding of the Constitution’s proper ends. He confidently observed in McCulloch v. Maryland (1819) that the nature of the Constitution demands “that only its great outlines should be marked, its important objects designated.” As for the “minor ingredients” that compose these objects, he was convinced that they could be “deduced from the nature of the objects themselves.”

The Living Constitution

Based on changing conditions and the lessons of experience, the adaptive, or “living Constitution,” approach holds that constitutional interpretation can and must be influenced by present-day values and take account of changing conditions in society. One of its critics writes that its proponents regard the Constitution as a “morphing document”[11] that means, from age to age, whatever the society, and more particularly the Court, thinks it ought to mean. The “living Constitution” approach has been enshrined in the Court’s interpretation of the Eighth Amendment’s prohibition against cruel and unusual punishments. The Court has held, beginning with Trop v. Dulles (1957), that this prohibition is not “static” but changes from generation to generation to comport with what Chief Justice Earl Warren called “the evolving standards of decency that mark the progress of a maturing society.”

Proponents of this approach concede that these adaptations must be reconcilable with the language of the Constitution. But, they insist, the meaning of the Commerce Clause, or what is protected by the Fourth Amendment or by the Due Process or Equal Protection Clauses, or the reach of the Eighth Amendment can legitimately change over time. For example, no one voting to adopt or ratify the Fourteenth Amendment in 1868 would have believed that they were, therefore, requiring the states to grant licenses for same-sex marriage. However, Justice Kennedy, relying equally on a “living Constitution” interpretation of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, would conclude for a five-member majority in Obergefell v. Hodges (2015) that a proper contemporary understanding of the principles enshrined by these clauses in the Constitution required exactly that. As Kennedy argued, “the nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” And, he continued, “Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”

The rationale for the living Constitution approach is well stated by Justice Oliver Wendell Holmes in Missouri v. Holland (1920):

When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

Defenders of this approach also like to cite Chief Justice Marshall’s observation in McCulloch that “we must never forget that it is a constitution we are expounding,” one that is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” However, Marshall was not asserting in McCulloch that the Court should adapt the Constitution but was arguing instead that the powers of the Constitution should be understood as broad enough to provide Congress with sufficient latitude to confront various crises in the future.[12]

Like the other approaches to constitutional interpretation considered thus far, the adaptive or “living Constitution” approach has its problems. Most important, too much adaptation can render the Constitution and its various provisions so pliant that the original document is no longer able to provide guidance concerning what is to be done. Some who embrace the adaptive approach seek not merely an adaptation within the Constitution but rather an adaptation of the Constitution; they want not only to devise new means to the ends of the Constitution but to adopt entirely new ends as well.[13] Justice Byron White’s frustration in New York v. United States (1992) with the Court’s insistence that Congress act in conformity with federalism and the Tenth Amendment is a case in point:

The Court rejects this . . . argument by resorting to generalities and platitudes about the purpose of federalism being to protect individual rights. Ultimately, I suppose, the entire structure of our federal constitutional government can be traced to an interest in establishing checks and balances to prevent the exercise of tyranny against individuals. But these fears seem extremely far distant to me in a situation such as this. We face a crisis of national proportions in the disposal of low-level radioactive waste. . . . For me, the Court’s civics lecture has a decidedly hollow ring at a time when action, rather than rhetoric, is needed to solve a national problem.

Justice William Brennan’s objections to capital punishment also illustrate the problems of the adaptive approach. He consistently argued that the objective of the Cruel and Unusual Punishments Clause of the Eighth Amendment is the promotion of “human dignity” and, by insisting that capital punishment is a denial of human dignity, concluded that capital punishment is unconstitutional,[14] despite the fact that the Constitution permits capital trials when preceded by a “presentment or indictment of a Grand Jury,” permits a person to be “put in jeopardy of life” provided it is not done twice “for the same offense,” and permits both the national government and the states to deprive persons of their lives provided it is done with “due process of law.”

The consequence of such an approach may be an increased politicization of the federal judiciary. As Justice Scalia pointed out in A Matter of Interpretation: “If the people come to believe that the Constitution . . . means, not what it says or what it was understood to mean, but what it should mean, in light of the ‘evolving standards of decency that mark the progress of a maturing society’—well, then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it.” In fact, “they will look for judges who agree with them as to what the evolving standards have evolved to; who agree with them as to what the Constitution ought to be.”[15]

The ultimate objection to the “living Constitution” is its essentially arbitrary quality—if it evolves in a way one likes, it is the “unfolding of the American dream;” if it evolves in a way one does not, it is not only a breach of the nation’s pledge to adhere to its original principles but also the unfolding of an American nightmare.


A consequentialist approach to interpretation will read a constitutional or statutory text with an eye to what will be the “practical consequences” of a Court’s decision on the “contemporary conditions, social, industrial, and political of the community to be affected.” In his book, Active Liberty, Justice Breyer proudly proclaims himself a consequentialist. Thus, for example, in campaign finance reform cases, he declares that “restrictions on speech, even when political speech is at issue,” are reasonable and lawful; the campaign reform law’s negative consequences on “those primarily wealthier citizens who wish to engage in more electoral communication” are more than offset by its positive consequences on the “public’s confidence in, and ability to communicate through, the electoral process.” And, concerning federalism issues, he asks, “Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further.”[16] Another example: In District of Columbia v. Heller (2008), Breyer dissented from the Court’s majority opinion that held that the Second Amendment secures an individual right to keep and bear arms for self-defense because of its “unfortunate consequences,” including threatening “to leave cities without effective protection against gun violence and accidents.”

Most justices who employ consequentialist arguments in constitutional cases lack Breyer’s candor in admitting that they are doing so; they simply do it. Some representative examples: in Linkletter v. Walker (1965), Justice Tom Clark wrote for a seven-member majority refusing to apply Mapp v. Ohio (1961) retroactively because it would “tax the administration of justice to the utmost,” that is, it would allow every person in prison serving a sentence where at trial illegally seized evidence was admitted to seek a new hearing, a new trial, or outright release. In Planned Parenthood v. Casey (1992), Justices O’Connor, Kennedy, and Souter in their joint plurality opinion refused to overrule Roe v. Wade (1972), despite their “reservations” that it was correctly decided because of the negative consequences that would have on the Court’s legitimacy. “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.” In Blakely v. Washington (2004), Justice O’Connor wrote for the four justices in dissent, rejecting the majority’s decision that the right to trial by jury required that every element of a crime that increases its penalty must be submitted to a jury and proved beyond a reasonable doubt because it would “trim or eliminate altogether” federal and state sentencing guidelines schemes. In United States v. Windsor (2013), Justice Kennedy insisted that the Supreme Court had jurisdiction in that case to declare unconstitutional the Defense of Marriage Act (DOMA) for two consequentialist reasons. To begin with, “the costs, uncertainties, and alleged harm and injuries [inflicted by DOMA] likely would continue for a time measured in years before the issue is resolved.” In addition, the Obama Administration’s refusal to defend DOMA would otherwise “preclude judicial review” and would thereby make “the Court’s role in determining the constitutionality of a law . . . secondary to the President’s.” And, in Harris v. Quinn (2014), Justice Kagan, in her dissent, justified the suppression of free speech for a class of public employees on the grounds that “thousands of contracts involving millions of employees” would have to be renegotiated.

Breyer admits that his approach makes it easy for a judge to be “willful, in the sense of enforcing [his] individual views.”[17] It is a temptation to which many on the Court have succumbed—and for a very long time. Indeed, Justice Scalia has claimed that consequentialism “is nothing but an invitation to judicial lawmaking.”[18]


Originalism is an umbrella term, referring to original intent, original understanding, and original public meaning. While these three terms are often used interchangeably and the approaches overlap somewhat, each can be seen as a distinct approach to constitutional interpretation. The first approach, original intent, seeks to identify what the delegates to the Constitutional Convention in Philadelphia collectively intended to accomplish when they drafted the Constitution in the summer of 1787. Those who pursue an original intent approach do so because they believe that “interpreting a document means to attempt to discern the intent of the author.”[19] Therefore, they focus on the text of the Constitution, on the records of the Constitutional Convention, on what the delegates said about the Constitution as it was being drafted. Madison’s notes figure most prominently for them, but other delegates also took notes and many of the delegates wrote letters and essays during and after the Convention that provide for them insight into the Framers’ intentions.

The second approach to originalism is original understanding. It focuses on identifying what the various provisions of the Constitution meant to those who brought the Constitution into existence, the delegates of the state ratifying conventions of 1787 and 1788. Those who pursue an original understanding approach point out that the Constitutional Convention met in secret under a rule that declared that “nothing spoken in the House be printed, or otherwise published, or communicated without leave,” and, as a consequence, the public did not become aware of its records and what was said there until decades after ratification of the Constitution. Therefore, the best way to discern the original understanding of the Constitution is to look at what the delegates said at the ratifying conventions and at what arguments were made by the various Federalist and Anti-Federalist writers attempting to influence the election of those delegates. Those who advocate an original understanding approach cite James Madison, who declared on the floor of the House on April 16, 1796:

Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.

The third approach to originalism is original public meaning, which is closely tied to textualism and is most closely associated with the late Justice Scalia. This approach seeks to ascertain the meaning of the particular constitutional text in question at the time of its adoption by consulting dictionaries of the era and other founding-era documents “to discern the then-customary meaning of the word and phrases in the Constitution.” As Scalia put it in A Matter of Interpretation:

I will consult the writings of some men who happened to be delegates to the Constitutional Convention–Hamilton’s and Madison’s writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus, I give equal weight to Jay’s pieces in The Federalist, and to Jefferson’s writings, even though neither of them was a Framer. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.[20]

Scalia’s majority opinion in District of Columbia v. Heller (2008), in which he held that the Second Amendment protects an individual’s right to keep and bear arms for purposes of self-defense, demonstrates his original public meaning approach to constitutional interpretation. In it, he turned to dictionaries and legal encyclopedias from the late eighteenth century to determine what such words as “keep,” “bear,” “arms,” and “well-regulated militia” meant to those who adopted and ratified the Second Amendment.

Although original intent, original understanding, and original public meaning typically lead to the same result, they do not always do so. Consider, for example, the question of state sovereign immunity where the text of Article III, § 2 suggests the states could be sued in federal court without their consent; where Alexander Hamilton in The Federalist, No. 81 and John Marshall in the Virginia State Ratifying Convention said they could not; where the Supreme Court in 1793 in Chisholm v. Georgia said they could; and finally where Congress and the state legislatures through their adoption and ratification of the Eleventh Amendment two years later said they could not. Consider also the tension between original intent and original understanding regarding the legal effect of treaties. James Wilson was one of the most prominent delegates to the Constitutional Convention—he more than any other delegate shaped the executive branch. He chaired the important Committee on Detail that turned the various resolutions approved by the delegates into a draft of the eventual Constitution; he considered treaties to be self-executing, having “the operation of law” without requiring implementing legislation. Wilson’s original intent position differed completely from Hamilton’s original understanding view in The Federalist, No. 75 that treaties “are not rules prescribed by the sovereign to the subject [i.e., they do not apply directly to the people and therefore do not have the operation of law], but agreements between sovereign and sovereign.”

On the current Supreme Court, Justice Clarence Thomas looks simultaneously to original public meaning, original intent, and original understanding to identify what is, in fact, the Constitution’s original general meaning.[21] In so doing, he incorporates Scalia’s narrower original public meaning approach and also asks what the text meant to the society that adopted it, but he then widens his originalist focus to consider evidence of the original intent of the Framers and the original understanding of the ratifiers and to ask why the text was adopted. Thomas thus views the proper inquiry as being what ends did the Framers seek to achieve, what evils did they seek to avert, and what means did they employ to achieve those ends and avert those evils when they proposed and ratified those texts.

Originalism as an approach to constitutional interpretation is enjoying a revival. In 1987, Scalia’s first year on the Court, originalist arguments were made in only 7 percent of constitutional cases, but twenty years later, with Scalia and Thomas together on the Court, they were made in nearly 35 percent of all cases.[22] Originalist arguments are prevailing in a variety of cases—especially in cases involving the rights of criminal defendants. There has been such a dramatic increase in the number of books, law review articles, and legal briefs advancing originalist analyses that Justice Elena Kagan, during her Senate confirmation hearings stated: “We are all originalists.”

That, however, has not shielded originalism from criticism. Some object to the very idea of originalism; as Walton H. Hamilton has famously noted, “It is a little presumptuous for one generation, through a Constitution, to impose its will on posterity. Posterity has its own problems, and to deal with them adequately, it needs freedom of action, unhampered by the dead hand of the past.”[23] Originalists, however, deny that they are attempting to impose the founding generation’s will on posterity. Rather, they seek to understand the intentions of the Framers, the understanding of the ratifiers, and the original meaning of the words and phrases they employed not because their judgments must be embraced unreservedly, but because they wrote and ratified the very Constitution we are called on to interpret; therefore, they are the best possible guides to discovering the ends and means of the constitutional order under which we live. As long as that order remains in force, we need to know as much about the Constitution as possible, including the purposes it was designed to achieve and the evils it was designed to avert. When constitutional questions are raised, therefore, this approach turns to the founding generation not for specific answers but rather for general guidance as to what the Constitution was to accomplish and how constitutional questions can be resolved in a manner consistent with these overall intentions.

Others such as Justice William Brennan criticize originalism as “little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.”[24] Or, as Justice Robert Jackson put it in Youngstown Sheet & Tube Company v. Sawyer (1952), “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called to interpret for Pharaoh.” If the problem Brennan and Jackson identify is a lack of evidence as to original intent, understanding, and meaning, it must be noted that with the tremendous outpouring of historical scholarship surrounding and following the bicentennial celebrations of the Declaration of Independence, the Constitution, and the Bill of Rights, we are awash in originalist sources. Since 1976, the Wisconsin Historical Society has published twenty-six volumes (with four more to come) of The Documentary History of the Ratification of the Constitution. In 1987, Philip B. Kurland and Ralph Lerner published The Founders’ Constitution, a five-volume work that includes original sources critical to the drafting and ratification of each article, clause, and paragraph of the US Constitution. In 1981, Herbert J. Storing published The Complete Anti-Federalist, a seven-volume collection of all the significant pamphlets, newspaper articles and letters, essays, and speeches that were written in opposition to the Constitution during the ratification debate. And, since 1972, the First Federal Congress Project published twenty volumes of The Documentary History of the First Federal Congress of the United States of America.

Still others dismiss originalism as simply a means of cloaking the justices’ policy predilections. Christopher L. Eisgruber argues that originalism is flexible enough that those who employ it reach conclusions at odds with their political preferences “between very rarely and never.”[25] Frank Cross agrees: “The justices are able to manipulate (or ignore) originalist materials to produce results they desire to reach on ideological or other grounds. . . . Originalism does not generally explain decisions, but is used to make them more appealing.”[26] To these critics, originalists offer two responses. First, they note that this charge can be leveled against other approaches to constitutional interpretation as well. Second, they argue that a justice’s consistent commitment to the originalist approach acts as a check, particularly when compared to the multiple approaches sometimes employed by other justices.

The Approaches in Perspective

Textual analysis, precedent, constitutional doctrine, logical analysis, adaptation, consequentialism, and the identification of original intent, original understanding, and original public meaning have all been used by justices of the Supreme Court as they have engaged in constitutional interpretation, and therefore these approaches all have contributed to our contemporary understanding of the Constitution. In this book, we are especially guided by the originalist approaches to constitutional interpretation, following the prudent counsel given by Justice Joseph Story in his Commentaries on the Constitution of the United States:

In construing the Constitution of the United States, we are, in the first instance, to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole and also viewed in its component parts. Where its words are plain, clear and determinate, they require no interpretation. . . . Where the words admit of two senses, each of which is conformable to general usage, that sense is to be adopted, which without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. . . . In examining the Constitution, the antecedent situation of the country and its institutions, the existence and operations of the state governments, the powers and operations of the Confederation, in short all the circumstances, which had a tendency to produce, or to obstruct its formation and ratification, deserve careful attention.[27]

Originalist approaches explore what Story calls the Constitution’s “nature and objects, its scope and design.” They begin by identifying the ends (i.e., “objects”) the Framers intended the Constitution to achieve and the means (i.e., the “scope and design”) they used to achieve these ends; based on that understanding, they proceed to evaluate the decisions of the Supreme Court and the lower federal and state judiciaries and the constitutionally significant pronouncements of the executive and legislative branches. But, what are these ends and means? The remainder of this chapter is a brief introduction to this important question.

The Ends of the Constitution

In spelling out the ends of the Constitution, we can begin with the Preamble and by quoting Justice Joseph Story: “It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. . . . There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble.”[28] The Preamble states that the Constitution was ordained and established by “We the People of the United States” in order “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The Preamble, when read in conjunction with the rest of the Constitution and the documentary history concerning its drafting and ratification, makes clear that the Founders set out to establish an efficient and powerful guarantor of rights and liberties based on the principle of qualitative majority rule, that is, the principle that the majority not only should rule but should rule well. In The Federalist, No. 10, James Madison explicitly stated this goal: “To secure the public good and private rights against the danger of [an overbearing majority], and at the same time to preserve the spirit and form of popular government is then the great object to which our inquiries are directed. Let me add that it is the desideratum by which alone this form of government can be rescued from the opprobrium under which it has so long labored and be recommended to the esteem and adoption of mankind.”

As Madison and his colleagues were well aware, the “great object” of their inquiries presented daunting difficulties. They were irrevocably committed to popular or republican government, but, historically, popular governments led inevitably to majority tyranny. In such governments, measures were decided “not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and over-bearing majority.” Minority rights were disregarded—as were the “permanent and aggregate interests of the community.” Because popular governments too easily allowed for “unjust combinations of the majority as a whole,” they typically had proved to be “incompatible with personal security, or the rights of property” and “as short in their lives, as they have been violent in their deaths.” Such, according to Madison, was the great “opprobrium” under which “this form of government” had “so long labored.”

The most commonly prescribed palliative for the problems of majority tyranny was to render the government powerless. However eager a majority might be to “concert and carry into effect its schemes of oppression,” if the government were sufficiently impotent, it would pose no real threat. As William Symmes commented in the Massachusetts State Constitutional Ratifying Convention, “Power was never given . . . but it was exercised, nor ever exercised but it was finally abused.”[29] The implication was clear: to prevent abuses, power must be consciously and jealously withheld.

This prescription was not without its shortcomings, however. Carried to an extreme, it rendered government not only powerless but also altogether unworkable. To this view, the leading Framers justifiably and appropriately responded that, although the spirit of jealousy was extremely valuable, when carried too far it impinged on another equally important principle of government—that of “strength and stability in the organization of our government, and vigor in its operations.”[30] They understood that a strong and stable government was necessary, not only to cope with the problems that society faces, but also to render liberty fully secure. In order that popular government “be recommended to the esteem and adoption of mankind,” they realized they would have to solve the twofold problem raised by majority rule: to establish a constitution capable of avoiding democratic tyranny, on the one hand, and democratic ineptitude, on the other. This problem had overwhelmed the government under the Articles of Confederation and led to the calling of the Federal Convention. Under the Articles, the member states were so powerful and their legislative assemblies so dominant and unchecked that the tyrannical impulses of the majority continually placed in jeopardy the life, liberty, and property of the citizenry; the central federal government was so infirm and its responsibilities so few and limited that its situation often “bordered on anarchy.” The Framers fully appreciated the challenge they faced. As Madison noted in The Federalist, No. 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” As we shall see, the Framers rose to this challenge by arranging the various articles and provisions of the Constitution so that they not only granted the federal and state governments sufficient power to control the governed but also obliged them to control themselves through a number of institutional arrangements and contrivances.

Constitutional Means to Constitutional Ends

The Framers’ solution to the problems of republican government was altogether consistent with republican principles. The Federalist is replete with references to this matter. Recognizing that “a dependence on the people is no doubt the primary control on the government,” the Framers also understood that experience had “taught mankind the necessity of auxiliary precautions.” This understanding was fundamentally shaped by their assessment of human nature. They believed humankind to be driven by self-interest and consumed by the desire for distinction. Humans were seen as “ambitious, rapacious, and vindictive” creatures whose passions for “power and advantage” are so powerful and basic that it is folly to expect that they can be controlled adequately by traditional republican reliance on pure patriotism; respect for character, conscience, or religion; or even the not-very-lofty maxim that “honesty is the best policy.” Inevitably, human avarice and lust for power divide individuals into parties, inflame them with mutual animosity, and render them much more disposed to oppress one another than to cooperate for the common good. Humans are predictable in such matters. They will form factions, whether there are readily apparent reasons to do so or not. As their passions lead them in directions contrary to the “dictates of reason and justice,” their reason is subverted into providing arguments for self-­indulgence rather than incentives to virtue.

Given these sentiments, it is hardly surprising that the Framers placed little faith in improving human nature through moral reformation or in the activities of “enlightened statesmen.” The only hope for republican government, they concluded, was the establishment of institutions that would depend on “the ordinary depravity of human nature.” Appreciating that human passion and pride are elemental forces that can never be stifled or contained by “parchment barriers,” they sought to harness and direct these forces through the process of mutual checking. Consequently, they included in the Constitution checks and controls that might “make it the interest, even of bad men, to act for the public good.”[31] Self-interest, the Framers contended, was one check that nothing could overcome and the principal hope for security and stability in a republican government. The rather ignoble but always reliable inclination of people to follow their own “sober second thoughts of self-interest” would serve to minimize the likelihood of majority tyranny.[32] As the observant Alexis de Tocqueville would later describe it, the Framers relied on institutional mechanisms to check one personal interest with another and to direct the passions with the very same instruments that excite them.

What kinds of institutional mechanisms—what constitutional means—could incorporate and redirect human self-interest in such a way as to enable the federal and state governments to control the governed and, at the same time, oblige those governments to control themselves? The answer to that question can be found in the three principal concepts underpinning the Constitution: the extended republic; separation of powers and checks and balances; and federalism.

The Extended Republic

The multiplicity of interests in the extended commercial republic established by the Constitution represents one of the principal mechanisms by which the Framers sought to establish an energetic government based on the principle of qualitative majority rule. The advantages of an extended republic can be best seen by examining the defects of a small republic.

As Madison noted in The Federalist, No. 10, the smaller the republic, “the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.” Thus arises democratic tyranny, which can be prevented only by rendering the government impotent and thereby fostering democratic ineptitude. In contrast, the larger the republic, the greater the variety of interests, parties, and sects present within it and the more moderate and diffused the conflict. In the words of The Federalist, No. 10, “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”

Because of the “greater variety” of economic, geographic, religious, political, cultural, and ethnic interests that an extended republic takes in, rule by a majority is effectively replaced by rule by ever-changing coalitions of minorities that come together on one particular issue to act as a majority but break up on the next. The coalition of minorities that acts as a majority on the issue of import duties is not likely to remain intact on such issues as national defense or governmental aid to private schools. The very real possibility that allies in one coalition might be opponents in the next encourages a certain moderation in politics, in terms of both the political objectives sought and the political tactics employed. Political interests become reluctant to raise the political stakes too high: by scoring too decisive a political victory on one issue, an interest might find that it has only weakened itself by devastating a potential ally and thus rendering itself vulnerable to similar treatment in the future. Accordingly, politics is moderated not through idle appeals to conscience and beneficence, but rather through the reliance on the inclination of individuals to look after their own self-interest. As Madison observed in The Federalist, No. 51, this diversity of interests ensures that “a coalition of a majority of the whole society” will seldom take place “on any other principles than those of justice and the common good.” The extended republic thus helped to make it possible for the Framers to give the national government sufficient power to prevent democratic ineptitude without raising the specter of democratic tyranny.

The Framers’ recognition of and reliance on the moderating effects brought about by an extended republic are apparent in such constitutional provisions as the Contract Clause in Article I, Section 10, which prohibits any state from passing laws “impairing the obligation of contracts.” Note that only the states are restrained, but the federal government is not—and for good reasons. It was thought that no state, however large, was or would be extensive enough to contain a variety of interests wide enough to prevent majorities from acting oppressively and using their legislative power to nullify contracts for their own advantage. Consequently, the states had to have their power to do so limited by the Constitution. The federal government, by contrast, was large enough and contained the multiplicity of interests necessary to prevent oppression of this sort and so had no need of constitutional constraint. Thus majority tyranny could be avoided simply by relying on the popular principle to operate naturally in an extended republic. The elegant simplicity of this mechanism was pointed out by Madison in The Federalist, No. 10: “In the extent and proper structure of the Union, therefore, we behold a Republican remedy for the disease most incident to Republican Government.”

Separation of Powers and Checks and Balances

For the Framers, the “great desideratum of politics” was the formation of a “government that will, at the same time, deserve the seemingly opposite epithets—efficient and free.”[33] The extended republic was one means by which they sought to realize this objective; a government of separated institutions sharing powers was another. They were aware, as Madison stated in The Federalist, No. 47, that “the accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective may justly be pronounced the very definition of tyranny,” and therefore that the preservation of liberty requires that the three great departments of power should be separate and distinct. Thus, they sought to construct a government consisting of three coordinate and equal branches, with each performing a blend of functions, thereby balancing governmental powers. Their goal was to structure the government so that, in the words of The Federalist, No. 51, the three branches would, “by their mutual relations, be the means of keeping each other in their proper places.”

This the Framers succeeded in doing. They began by giving most legislative power to the Congress, most executive power to the president, and most judicial power to the Supreme Court and to such inferior federal courts as Congress might establish. They then set out to divide and arrange the remaining powers in such a manner that each branch could be a check on the others. Thus, they introduced the principle of bicameralism, under which Congress was divided into the House of Representatives and the Senate, and they arranged for the president to exercise certain important legislative powers by requiring yearly addresses on the State of the Union and by providing him with a conditional veto power. (Some Framers assumed that the Congress would also be restrained by the Supreme Court’s unstated power of judicial review.) The Framers sought to keep the president in check by requiring senatorial confirmation of executive appointees and judicial nominees, mandating that the Senate advise on and consent to treaties, and allowing for impeachment by the Congress. Finally, they supplied the means for keeping the Supreme Court in its “proper place” by giving the Congress budgetary control over the judiciary, the power of impeachment, and the power to regulate the Court’s appellate jurisdiction. On top of these specific arrangements, they provided for staggered terms of office (two years for the House, six years for the Senate, four years for the president, and tenure “for good behavior” for the judiciary) to give each branch a further “constitutional control over the others.”

Because they knew that the various branches of the government, even though popularly elected, might from time to time be activated by “an official sentiment opposed to that of the General Government and perhaps to that of the people themselves,”[34] they regarded separation of powers as essential to ensure the fidelity of these popular agents. Separation of powers would provide for a “balance of the parts” that would consist “in the independent exercise of their separate powers and, when their powers are separately exercised, then in their mutual influence and operation on one another. Each part acts and is acted upon, supports and is supported, regulates and is regulated by the rest.” This balance would ensure that, even if these separate parts were to become activated by separate interests, they would nonetheless move “in a line of direction somewhat different from that, which each acting by itself, would have taken; but, at the same time, in a line partaking of the natural direction of each, and formed out of the natural direction of the whole—the true line of publick liberty and happiness.”[35] Not only would such a separation and balancing of powers prevent any branch of government from tyrannizing the people, but it would also thwart the majority from tyrannizing the minority. In creating an independent executive and judiciary, the Framers provided a means of temporarily blocking the will of tyrannical majorities as expressed through a compliant or demagogic legislature. Although separation of powers cannot permanently frustrate the wishes of the people, on those occasions when “the interests of the people are at variance with their inclinations,” it so structures these institutions that they are able to “withstand the temporary delusions” of the people, in order to give them what The Federalist, No. 71, described as the “time and opportunity for more cool and sedate reflection.” The prospects for democratic tyranny are dimmed accordingly.

And, in addition to keeping society free, separation of powers was seen by the Framers as helping to render the government efficient—as minimizing the prospects for democratic ineptitude. Realizing that the democratic process of mutual deliberation and consent can paralyze the government when swift and decisive action is necessary, the Framers reasoned that government would be more efficient if its various functions were performed by separate and distinct agencies. According to James Wilson, a leading Framer:

In planning, forming, and arranging laws, deliberation is always becoming, and always useful. But in the active scenes of government, there are emergencies, in which the man . . . who deliberates is lost. Secrecy may be equally necessary as dispatch. But can either secrecy or dispatch be expected, when, to every enterprise, mutual communication, mutual consultation, and mutual agreement among men, perhaps of discordant views, of discordant tempers, and discordant interests, are indispensably necessary? How much time will be consumed! and when it is consumed, how little business will be done! . . . If, on the other hand, the executive power of government is placed in the hands of one person, who is to direct all the subordinate officers of that department; is there not reason to expect, in his plans and conduct, promptitude, activity, firmness, consistency, and energy?[36]

For the Framers, then, separation of powers not only forestalled democratic tyranny but also provided for an independent and energetic executive able to ensure what The Federalist, No. 37, called “that prompt and salutary execution of the laws, which enter into the very definition of good Government.”


The American constitutional system rests on a federal arrangement in which power is shared by the national government and the states. The primary purpose of this arrangement was to provide for a strong central government; however, it has also had the effect of promoting qualitative majority rule. The federalism created by the Framers can best be understood when contrasted with the confederalism that existed under the Articles of Confederation. Confederalism was characterized by three principles:

  1. The central government exercised authority only over the individual governments (i.e., states) of which it was composed, never over the individual citizens of whom those governments were composed. Even this authority was limited; the resolutions of the federal authority amounted to little more than recommendations that the states could (and did) disregard.
  2. The central government had no authority over the internal affairs of the individual states; its rule was limited mainly to certain external tasks of mutual interest to the member states.
  3. Each individual state had an “exact equality of suffrage” derived from the equality of sovereignty shared by all states.[37]

The consequences of these principles on the operation of the federal government were disastrous. They rendered the Articles of Confederation so weak that they were reduced, in Alexander Hamilton’s words from The Federalist, No. 9, “to the last stage of national humiliation.” There was obviously a need for a “more perfect union” and for new arrangements capable of rendering the political structure “adequate to the exigencies of Government and the preservation of the Union.”[38]

The new federal structure erected by the Framers corrected each of the difficulties inherent in confederalism. To begin with, the power of the new federal government was enhanced considerably. Not only could it now operate directly on the individual citizen, just as the state governments could, but it could also deal with internal matters: for example, it now could regulate commerce among the several states, establish uniform rules of bankruptcy, coin money, establish a postal system, tax, and borrow money. Moreover, the federal government was made supreme over the states. As Article VI spelled out: “This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land.”

If the federalism the Framers created strengthened the central government, it also contributed to qualitative majority rule by preserving the presence of powerful states capable of checking and controlling not only the central government but each other as well. Federalism granted the new central government only those powers expressly or implicitly delegated to it in the Constitution and allowed the states to retain all powers not prohibited to them. The states were permitted to regulate intrastate commerce and the health, safety, and welfare of the citizenry (i.e., the police power) and even were authorized to exercise certain powers concurrently with the central government—for example, the power of taxation and the power to regulate interstate commerce—so long as these powers were not exercised in a manner inconsistent with constitutional limitations or federal regulations. Finally, the Framers’ federalism also contributed to qualitative majority rule by blending federal elements into the structure and procedures of the central government itself. To take only the most obvious example, it mixed into the Senate the federal principle of equal representation of all states. When joined with bicameralism and separation of powers, this principle directly contributed to qualitative majority rule. For a measure to become law, it would have to pass the Senate—where, because of the federal principle of equal representation of all states, the presence of a nationally distributed majority (with the moderating tendencies that provides) would be virtually guaranteed.

This division of power between the federal and state governments also provided another remedy for the ills of democratic ineptitude. As James Wilson emphasized, with two levels of government at their disposal, the people are in a position to assign their sovereign power to whichever level they believe to be more productive in promoting the common good. Moreover, efficiency is gained in still another way. The federal system permits the states to serve as experimental social laboratories in which new policies and procedures can be implemented. If these experiments prove to be successful, they can be adopted elsewhere; if they fail, the damage is limited to the particular state in question. Because the risks are lessened, experimentation is encouraged, and the chances of positive reform and better governance are increased accordingly. In a wholly national or unitary system, on the other hand, experimentation can take place only on a national scale, and social inertia and a commitment to the status quo are encouraged.

The enhanced efficiency of the federal system, in turn, dims the prospect of democratic tyranny. As Madison observed in The Federalist, No. 20, “Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than by the full exercise of the largest constitutional authorities.”

The Framers saw the multiplicity of interests present in an extended republic, separation of powers and checks and balances, and federalism as contributing to a government that is at once “efficient and free.” These institutional mechanisms, operating in conjunction with each other, were designed to prevent the twin evils of democratic ineptitude and democratic tyranny. The Framers’ intention was to institute an energetic and efficient government based on the principle of qualitative majority rule, and they systematically and consistently employed these means to achieve that end. This understanding is at the core of the approach to constitutional interpretation, used where appropriate, in the discussion of the constitutional provisions that follows.


[1] Chief Justice Hughes subsequently qualified these remarks. “The remark has been used, regardless of its context, as if permitting the inference that I was picturing constitutional interpretation by the courts as a matter of judicial caprice. This was farthest from my thought. . . . I was speaking of the essential function of the courts under our system of interpreting and applying constitutional safeguards.” The Autobiographical Notes of Charles Evans Hughes, edited by David J. Danielski and J. S. Tulshin (Cambridge, MA: Harvard University Press, 1973), 143.
[2] Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard and Gray, 1833), 1: 436–437.
[3] Graves v. O’Keefe (1939), Justice Frankfurter concurring.
[4] See book 3, chapter 5, “Rules of Interpretation,” in Story, Commentaries on the Constitution of the United States, 1:382–442. See also Francis Lieber, Legal and Political Hermeneutics, 2nd ed. (Boston: Charles C. Little & James Brown, 1839), reprinted in Cardozo Law Review 16, no. 6 (1995): 1879–2105.
[5] Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Alfred A. Knopf, 2005), 19.
[6] Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England, edited by Joseph Cropsey (Chicago: University of Chicago Press, 1971), 129.
[7] See J. Skelly Wright, “Professor Bickel, the Scholarly Tradition, and the Supreme Court,” Harvard Law Review 84, no. 4 (1971): 785.
[8] Avery v. Midland County (1968), Justice Fortas dissenting.
[9] Scalia and Garner state that “the most rigorous form of logic, and hence the most persuasive, is the syllogism.” Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges (St. Paul, MN: Thomson, West, 2008), 41.
[10] Ibid., 42.
[11] The phrase is Justice Scalia’s. See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton, N.J.: Princeton University Press, 1997), 47.
[12] See Christopher Wolfe, “A Theory of U.S. Constitutional History,” Journal of Politics 43, no. 2 (1981): 301.
[13] See Walter F. Berns, Taking the Constitution Seriously (New York: Simon and Schuster, 1987), 236: “The Framers . . . provided for a Supreme Court and charged it with the task, not of keeping the Constitution in tune with the times but, to the extent possible, of keeping the times in tune with the Constitution.”
[14] William J. Brennan, “The Constitution of the United States: Contemporary Ratification,” presentation at the Text and Teaching Symposium, Georgetown University, Washington, DC, October 12, 1985.
[15] Scalia, Matter of Interpretation, 46–47 (emphases in the original).
[16] The quotations above come from Breyer, Active Liberty, see pp. 6, 18, 48–49, 63, and 97.
[17] Ibid, pp. 97, 18.
[18] Scalia, Matter of Interpretation, 21.
[19] Lino Graglia, “Interpreting the Constitution: Posner on Bork,” 44 Stanford Law Review (1991–1992): 1019, 1024.
[20] Scalia, Matter of Interpretation, 34.
[21] Ralph A. Rossum, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (Lawrence: University Press of Kansas, 2014).
[22] Jeffrey S. Sutton, “The Role of History in Judging Disputes about the Meaning of the Constitution,” Texas Tech Law Review 41 (2009): 1173, 1176.
[23] Walton H. Hamilton, “The Constitution—Apropos of Crosskey,” University of Chicago Law Review 21, no. 1 (1953): 82.
[24] See Brennan, “Constitution of the United States.”
[25] Christopher L. Eisgruber, Constitutional Self-Government (Cambridge, MA: Harvard University Press, 2007), p. 40.
[26] Frank Cross, The Failed Promise of Originalism (Palo Alto, CA: Stanford University Press, 2013), p. 190.
[27] Story, Commentaries on the Constitution of the United States, 1:387–388. See also 322, 404, 412, and 417.
[28] Ibid., 443–444.
[29] Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention in Philadelphia in 1787, 5 vols., 2nd ed. (Philadelphia: Lippincott, 1866), 2:74.
[30] Alexander Hamilton in the New York State Ratifying Convention, in Elliot, Debates in the Several State Conventions, 2:301.
[31] David Hume, Political Essays, edited by Charles W. Handel (Indianapolis: Bobbs-Merrill, 1953), 13.
[32] The phrase is Frederick Douglass’s. See his “The Destiny of Colored Americans,” North Star, November 16, 1849.
[33] Robert Green McCloskey, ed., The Works of James Wilson (Cambridge, MA: Belknap Press of Harvard University Press, 1967), 791.
[34] James Wilson, in Farrand, Records of the Federal Convention of 1787, 1:359.
[35] McCloskey, Works of James Wilson, 300.
[36] Ibid., 294, 296. See also The Federalist, No. 70.
[37] See Martin Diamond, “What the Framers Meant by Federalism,” in A Nation of States: Essays on the American Federal System, edited by Robert A. Goldwin, 2nd ed. (Chicago: Rand McNally College Publications, 1974), 25–42.
[38] Resolution of the Congress calling for the Federal Convention of 1787, in Farrand, Records of the Federal Convention of 1787, 3:14.

Selected Readings

The Federalist, Nos. 1, 6, 9, 10, 15, 37, 39, 47–51, 63, 70–72, 78.

Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House, 2006.

Anastaplo, George. The Constitution of 1787: A Commentary. Baltimore, MD: Johns Hopkins University Press, 1989.

Balkin, Jack M. Living Originalism. Cambridge, MA: Harvard University Press, 2011.

Barber, Sotirios A., and James E. Fleming. Constitutional Interpretation: The Basic Questions. New York: Oxford University Press, 2007.

Baude, William. “Is Originalism Our Law?” Columbia Law Review 115 (2015): 1–86.

Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Alfred A. Knopf, 2005.

Calabresi, Steven G., ed. Originalism: A Quarter-Century of Debate. Washington, DC: Regnery, 2007.

Cornell, Saul. The Other Founders: Anti-Federalism and Dissenting Tradition in America, 1788–1828. Chapel Hill: University of North Carolina Press, 1999.

Cross, Frank. The Failed Promise of Originalism. Palo Alto, CA: Stanford University Press, 2013.

Diamond, Martin. “Democracy and The Federalist: A Reconsideration of the Framers’ Intent.” American Political Science Review 53, no. 1 (1959): 52–68.

Douglas, William O. “Stare Decisis.” Columbia Law Review 49 (1949): 725–758.

Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention in Philadelphia in 1787. 2nd ed. 5 vols. Philadelphia: Lippincott, 1866.

Farrand, Max, ed. The Records of the Federal Convention of 1787. 4 vols. New Haven, CT: Yale University Press, 1937.

Faulkner, Robert K. The Jurisprudence of John Marshall. Princeton, NJ: Princeton University Press, 1968.

Hickok, Eugene W., ed. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville: University Press of Virginia, 1991.

Kesler, Charles R., ed. Saving the Revolution: The Federalist Papers and the American Founding. New York: Free Press, 1987.

Kurland, Philip B., and Ralph Lerner, eds. The Founders’ Constitution. 5 vols. Chicago: University of Chicago Press, 1987.

Levinson, Sanford. Framed: America’s 51 Constitutions and the Crisis of Governance. New York: Oxford University Press, 2012

________. “On Interpretation: The Adultery Clause of the Ten Commandments.” Southern California Law Review 58, no. 2 (1985): 719–725.

Levy, Leonard W., and Dennis J. Mahoney, eds. The Framing and Ratification of the Constitution. New York: Macmillan, 1987.

Maier, Pauline. Ratification: The People Debate the Constitution, 1787–1788. New York: Simon & Schuster, 2010.

McClellan, James. Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government. 2nd ed. Indianapolis: Liberty Fund, 1999.

McDowell, Gary L. The Language of Law and the Foundations of American Constitutionalism. New York: Cambridge University Press, 2010.

McGinnis, John O., and Michael B. Rappaport. Originalism and the Good Constitution. Cambridge, MA: Harvard University Press, 2013.

Meese, Edwin. “Toward a Jurisprudence of Original Intention.” Benchmark 2, no. 1 (1986): 1–10.

O’Connor, Mike. A Commercial Republic: America’s Enduring Debate over Democratic Capitalism. Lawrence: University Press of Kansas, 2014.

Rehnquist, William H. “The Notion of a Living Constitution.” Texas Law Review 54 (May 1976): 693–707.

Rossum, Ralph A. Antonin Scalia’s Jurisprudence: Text and Tradition. Lawrence: University Press of Kansas, 2006.

________. Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration. Lawrence: University Press of Kansas, 2014.

Rossum, Ralph A. and Gary L. McDowell, eds. The American Founding: Politics, Statesmanship, and the Constitution. Port Washington, NY: Kennikat Press, 1981.

Ryan, James E., “Does It Take A Theory? Originalism, Active Liberty, and Minimalism, Stanford Law Review 58 (2006): 1623–1660.

Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton University Press, 1997.

Scalia, Antonin, and Bryan A. Garner. Reading Law: Interpretation of Legal Texts. St. Paul, MN: West, 2012.

Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.

Strauss, David A. The Living Constitution. New York: Oxford University Press, 2010.

Tillman, Seth Barrett, “The Federalist Papers as Reliable Historical Source Materials for Constitutional Interpretation.” West Virginia Law Review 105 (2003): 601–619.

Watson, Bradley C. S. Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence. Wilmington, DE: ISI Press, 2009.

Whittington, Keith E. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence: University Press of Kansas, 1999.

Wolfe, Christopher. How to Read the Constitution: Originalism, Constitutional Interpretation, and Judicial Power. Lanham, MD: Rowman & Littlefield, 1996.

Wood, Gordon S. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press, 1969.

We hope you have enjoyed this sample of:

American Constitutional Law, Volume I


American Constitutional Law, Volume II

Tenth Edition

by Ralph A. Rossum and G. Alan Tarr

Copyright © 2017 by WESTVIEW PRESS

More Information
  • African Studies
  • Art and Architecture
  • Education
  • European Studies
  • Philosophy
  • Psychology
  • Religion
  • Science and Advanced Math