THE JURISPRUDENCE OF CONSTITUTIONAL INTERPRETATION
The judicial function is all about interpretation. Judges and justices do not make law - that is the role of the legislature -- justices interpret existing law. Interpretation is an art, not a science. Sometimes, it's specific; other times, interpretation only yields more abstraction and obtuseness. Think of constitutional interpretation as trying to interpret the meaning of dreams. The dream in this case is the basic dilemma of any constitutional democracy -- how to assure majority rule while protecting minority rights (the Madisonian dilemma of avoiding tyranny by either the majority or minority). In order to resolve this dilemma, one needs some kind of theory, a guide, a roadmap, something to follow. It doesn't really matter which theory yields the most correct conclusions, as long as you have a theory which justifies why you are there trying to resolve the dilemma, and that theory harmonizes or resonates well with the goals of a constitutional democracy.
There have been many debates over the different modes of constitutional interpretation. The first debate was in Marbury v. Madison (1803) when the Supreme Court first asserted its power of judicial review. Not only did this famous case establish that the Supreme Court would be the sole interpreter of the constitution, but it laid down several important ground rules, or assumptions (for later theories):
MODES OF CONSTITUTIONAL INTERPRETATION
1. ORIGINAL INTENT, aka Original History, intended meanings of words - the reasoning behind this approach is that the framers carefully debated and chose their words precisely to produce neutral principles of law. Advocates claim it fosters consistency and stability in law, and keeps rights that exist today from ever disappearing tomorrow. Critics claim that it can be easily used to disguise ideological ends, that the framers were not of one mind, and historical records are lost. The doctrine of original intent was used in Hustler v. Falwell (1988) to find that cartoon parodies are a form of protected First Amendment expression. Intent of the framers is also the logic behind reasonable expectation of privacy in Katz v. U.S. (1967). Another place where the doctrine is framed is over whether capital punishment is cruel and unusual, as those words were used by the writers of the Eighth Amendment. The leading proponents of original intent are Justice Stevens and to a lesser extent, Justice Ginsburg.
2. TEXTUALISM, aka Literalism, Plain Words approach, ordinary meanings of words - this approach doesn't look any further than the words of the Constitution itself; it doesn't try to infer any intended meanings. The reasoning is that justices should take the words as written and promulgated to the people of the United States. A pure textualist, or literalist, approach looks for key phrases like "Congress shall make no law...abridging the freedom of speech" and finds that no law means no law. Reading the Constitution literally is also called strict construction. Other strands of textualism try to understand what the words would have meant to the people at the time they were written. Advocates claim it produces value-free jurisprudence and keeps justices in touch with the people. Critics claim it leads to inconsistent decision making, and represents a static, non-living document view of the Constitution. Textualism is often found in Fourth, Fifth, and Sixth Amendment cases involving criminal procedure when the Court decides to go off in some new expansionist or restrictionist direction. Textual analysis was present in Coy v. Iowa (1988) which struck down a system in which child witnesses could testify behind a screen. The leading proponent of textualism is Justice Scalia and to a lesser extent, Justice Rehnquist.
3. PRECEDENT, aka Stare Decisis, look at previously decided cases - this is the doctrine of stare decisis (let the decision stand) which means that the Supreme Court looks at its own past decisions. Technically, all courts are bound to follow the rule of law in all previous decisions by higher courts (the Supreme Court being no exception), in what is called the holding. The holding of a case is the opposite of dictum, what is irrelevant to decide a case. For example, if a case involves overturning a confession police obtained from a mentally retarded person, the part about the person being mentally retarded would be the dictum, and the rule that police should not obtain confessions from any mentally challenged person would be the holding. Advocates claim that precedent serves as a clear-cut guide, makes interpretation predictable, and keeps the Court from reversing itself. Critics claim that precedent is used as a weapon rather than guide, justices often pick and choose which precedents they like, and that the Supreme Court has generated so much precedent that support for any conclusion is possible. Precedent is often used as a rationale to limit the rights of criminal defendants. The leading proponents of precedent today are Justice Rehnquist and to a lesser extent, Justice O'Connor. Precedent was present in the reasoning behind the famous desegregation case of Brown v. Board of Education (1954), although that case also involved social scientific testimony that Justices who follow precedent don't always favor.
4. LOGICAL, aka Mathematical, put words into logic formulas - this is the approach that justices ought to engage in formal reasoning, usually in the form of a syllogism, a type of logic which draws a conclusion from a major and minor premise. Advocates claim that it gives legal reasoning a scientific justification. Critics claim that minor premises are often faulty and lead to invalid conclusions. Currently, there are no Supreme Court justices that use this method. The most famous case to use logical reasoning is Marbury v. Madison (1803) which created the right of judicial review.
5. PRUDENTIALISM, aka Doctrinal, if appropriate for adversary process - this is a common approach found throughout the court system. What every prosecutor knows is that you only try cases you can win with, look good in court with, and call forth established doctrines or rules of law. The Supreme Court is no exception. It avoids unfamiliar ground, but in some cases will decide on a case very carefully and thoroughly simply in order to allow important legal arguments to be heard, to enhance the prestige of the Court, and to clarify important doctrines. It's unknown how many Supreme Court justices explicitly adhere to this approach, but whenever you get lengthy opinions that cover a wide range of subjects and doctrines, you know its being used. An example is Baker v. Carr (1962) which was a judicial review over legislative redistricting case involving the political question doctrine, the Equal Protection clause, standing, and justiciability.
6. STRUCTURALISM, aka Aspirational, if maintains social order - this is a Constitution as "living document" approach which looks at each and every case as unique, and is more concerned with remedy-making than rule-making. More case specific than philosophical, this method usually results in a balancing test, matching the powers of government on one side and the rights of individuals on the other side. It's unknown how many Supreme court justices use this method, but it's assumed the logic behind the famous abortion case Roe v. Wade (1973) is the idea of a living constitution.
JURISPRUDENCE
Jurisprudence is the science dealing with the rules and principles of law that have been adopted for the government of an organized society. The word was first used in the Justinian code and defined as knowledge of divine and human matters, knowledge of what is just and unjust. Over the years, it has come to mean the study of law as a whole, the philosophy of law, or legal theory. Think of it as an attempt to see the forest for the trees. Jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Many academic disciplines have laid claim to their own brands of jurisprudence, and each have tried to elucidate the roots of law, explain the unintended consequences of law, promote a vision of the social order that a law-driven society is aimed for, and how the law puts that vision into effect. Several of the most well-known fields of jurisprudence are listed below with only the briefest of explanations.
1. ANALYTICAL - the classification of
law into conceptual categories
2. SCIENTIFIC - aka Jurimetrics; Social Science applications in law
3. LEGAL REALISM - study of law in action, discretion, responsiveness
4. MECHANICAL - application of precise rules of law and evidence; formalism
5. MEDICAL - importance of forensic law, expert testimony, therapeutic justice
6. MARXIST - a sociology of law approach, seeing law as tool of ruling class
7. POST-MARXIST - the approach of Habermas, seeing the duality of law
8. SOCIOLOGICAL - various theories of law in context of time & place, living
law
9. FEMINIST - the study of law from a gendered liberal or radical perspective
10. CRITICAL LEGAL STUDIES - approaches which break with traditional liberalism