Which Constitutional Modality is the Best?

Submission by Joshua Hinds ‘26

In order to answer the question as to which modality of constitutional interpretation is best, first the understanding of what a constitutional modality is must be made clear, then the idea of what is best would also need to be defined. During the landmark Supreme Court case of Marbury v. Madison (1803), the concept of judicial review was formally established as a foundational characteristic of the Supreme Court. Judiciary review allows the Supreme Court to hold the other two branches of the government, that being the executive and legislative, accountable by holding their actions to the Constitution in order to see whether or not they are constitutional. With the Supreme Court now being able to interpret the Constitution and hold others accountable, there then arose the modes in which they were to interpret the Constitution. Now in order to understand which mode, or lens in which to view the Constitution under is best, under this context, it would have to be whichever mode that gives the particular justice interpreting the Constitution the most full version of the interpretation; It would have to be one that would give most meaning and truth to what the constitution means and how it acts in order to best apply it. 

Philip Bobbitt, a constitutional theorist, popularized the concept of constitutional modalities, breaking them down into eight different lenses in which the constitution can be viewed under. Those modes being: “(1) textualism; (2) original meaning; (3) judicial precedent; (4) pragmatism; (5) moral reasoning; (6) national identity (or ethos); (7) structuralism; and (8) historical practices.” In reality, it should be understood that Supreme Court justices who are interpreting the Constitution will use any number of these modalities at a given time as well as nonexclusively. Thus, all of these modalities are useful and important, but if we are looking for the modality that would provide the fullest of interpretations then it can be tailored down to three modalities. These three include textualism, original meaning, and judicial precedent. By analyzing these three modalities, it will be much easier to figure out how they rank with one another. 

Textualism focuses on the words explicitly written in the Constitution, those who use this for mode interpretation use the generally agreed upon meaning of words in order to surmise what the text is saying. Textualism is unique in that it isolates itself from all forms of context or consequence of that particular passage, by prioritizing the objective meaning of the text through analyzing the words used as well as the grammatical structure of the text.. On the other hand original meaning cares as to the common understanding of any given law or provision as it was written. Thus, those using this lens of interpretation care greatly about context as they would hold that context would determine the true meaning of the passage. Lastly, judicial precedent is simply using prior case decisions in order to determine the current case decisions of similar fact. Those using precedent can be broad or narrow in how they apply past cases to current ones. These three modalities each have strengths and critiques that make each stronger or weaker than the other. For textualism, its strength lies in isolating the context of the original text and the effects of the text in order to derive the absolute meaning. Its weaknesses can also be in the fact that it ignores the historical context of the particular provision, where some people would hold that by not taking into account the context then the meaning that is attempted to be derived is incomplete. This is where original meaning comes in with its strength. Its strength lies within the fact that it looks to, as the name implies, the original meaning. Thus, those using it can clearly point to the purpose of the provision and reasonably apply it to a particular contemporary issue. Its weakness is that while looking at the original context of the text is useful, it can also be dated. The United States and its beliefs are not completely all that similar to those of today, thus their interpretations and intents may not be the same as today. That is the tricky part of having a living constitution that continues to change and adapt with the times. As for judicial precedent, its strength would come from being able to see past opinions and decisions on similar issues in order to gain an enlightened perspective. This allows legal tradition to build which can create precedent almost as powerful as written law. The weakness with judicial precedent, though, would be in that not all precedent is good, and that some precedent gets overturned. If that's the case, how can you rely on precedent by itself if it is possible that the particular precedent is not an accurate reflection of true meaning?

Each constitutional modality gives a piece of the interpretive puzzle in order to derive the most complete meaning. But it is these three that give the biggest of the puzzle pieces, providing us with the most complete idea of the picture, that being grammatical meaning, contextual meaning, and layers of legal discussion and reasoning. If it is required to state explicitly which of the three would be considered the single biggest piece of the interpretative puzzle then it would have to be textualism. Harkoning back to the beginning in which the role of the judiciary is discussed as being the interpreter of laws, it is thus clear that the judiciary is to remain tied to the meaning of the laws and text of the Constitution in how they act. A problem that can be faced when Justices stray from absolute meaning and interpret the Constitution through a subjective lens is that they are participating in the concept of judicial activism. Judicial activism and interpreting the Constitution through a political policy lens is contrasted with judicial restraint which is wary about reinterpreting the laws; it places more emphasis on constraint while interpreting the law. Thus, if Justices are to refrain from partaking in judicial activism while interpreting the law, then the best way to do that would be to use the textual modality—by isolating all interpretation of the law from any outside belief, whether past belief of the meaning (historicism) or current and future effects of the law (prudentialism). By objectively analyzing the passage for its grammatical structure and the words’ meaning, it is easier to stay consistent and objective. This is not to say that neither originialism or judicial precedent are unable to maintain objectivity, it is just that those are more prone to the effects of subjective interpretation which is exemplified through overturning precedent for example. 

Joshua Hinds is a senior majoring in philosophy and political science.

Sources

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