Which Constitutional Modality is the Best?

Submission by Rund Faraj ‘28

The United States Constitution is recognized as the foundation and authority that established America's governing system. It was written in 1787 and ratified in 1788, then put into effect by 1789. According to the United States Senate, the Constitution reinforces the purpose of the government in its famous opening words, “We the People,” demonstrating that serving the citizens should be its top priority. Although the Constitution established a structure and is used in multiple ways, it does not have an answer to every question. In fact, it has been written broadly intentionally so it can adapt to change, according to the American Constitution Society. Because of this, the courts' interpretation is necessary to resolve important matters that the Constitution does not explicitly resolve. According to the National Constitution Center, there are seven widely accepted methods of interpretation regarding the Constitution. These are: textualism, history, tradition, precedent, structure, prudence, and natural law, which all serve a distinct purpose to the judges who apply them. From these approaches, the most efficient is the prudential method because it is able to examine the impact of a decision by considering the consequences, offering a method that is faithful to the Constitution and stable. 

The prudential approach focuses on logic and practicality, and according to the National Constitution Center, the prudential approach is when a judge considers the effects of their ruling, their limitations, and the costs and benefits of each factor. Other methods, like textualism or history, can have trouble adapting when circumstances differ from the time the Constitution was written, while prudence allows judges to be adaptable to every case by using their discretion. According to the Legal Information Institute, prudence is defined as careful judgment in decision-making. This shows that prudence is reasonably applied and structured with the betterment of the people in mind and is not something that disregards the Constitution entirely. In fact, prudential reasoning is within the constitutional structure in Article III, Section 2, according to the Congressional Research Service. This is where prudential standing doctrines are implemented in the federal courts. The federal courts can decline to hear a case based on prudential considerations, even if a party satisfies the minimum constitutional requirements. The refusal to hear a case can occur in three different scenarios: if a party is attempting to make arguments on behalf of another person, if a party is presenting a general grievance shared by the public, or if the party' s expressed interest does not fall within the interest of the law. This shows that prudence is being used by the courts as a way to protect constitutional principles such as the separation of powers and limitation of power. 

Judicial rulings can influence public policy, government authority, and individual rights, which is why it is essential to take into consideration all the factors and use the prudential method since it looks at the impact decisions have on the real world. By relying on other methods, judges are not considering consequences, and their decisions could ultimately result in instability or unintentionally hurting people. When using the prudential approach, this would not be the case, as it requires judges to exercise important discretion when it comes to rulings, as explained by the National Constitution Center. Courts are not legislatures; they are not required to take on the responsibility of accountability, but their power is just as important. This is exactly why the prudent method is necessary to allow for awareness in the courts of any limitations and impacts they may have. 

Since the Constitution is known to reflect conflicting ideas, as shown in Nicholas Buccola’s “In Defense of Judicial Prudence”, the implementation of prudence as a premier virtue is important, as argued throughout his article. He shows that no method is able to protect all the different values the Constitution elicits, such as democracy, the rule of law, and justice. For example, originalism will struggle to apply the Constitution when the current situation differs greatly from when it was written decades ago. There are many instances of this, which is why Buccola emphasizes the prudential approach as the best one since it looks at the situation at hand and decides what implications it needs. This shows how prudence does not replace any important modalities but is a foundation for how they should be used. 

James Madison and his way of thinking show how important the prudential method is. This is highlighted in Jonathan Ashbach’s “Against Every General Principle”, which shows how Madison thought of political governance and understood that it required compromise and judgment. For example, he would support legislation even if it conflicted with his own principles, if he thought that the opposite would cause harm. He once voted for a bill regarding a church incorporation even though he was opposed to religious tax, because he was not thinking about his self-interests, but rather he was thinking about what effect his decision would have. Although he believed that principles were important, he weighed them against the consequences that could occur, and made his decision based on that. This type of thinking represents what the prudential model is. Madison did not abandon constitutional principles; he weighed his options and selected the least harmful one. This is exactly what every judge in a court of law should do when deciding a case. 

Despite all of this, critics will argue that the prudential approach allows judges to be able to use their discretion freely, throwing out the Constitution entirely, weakening the Constitution's stability and its purpose. Buccola acknowledges that judges will have to prioritize some constitutional values, which would raise these arguments and expand them if not addressed. Ashbach also shows that critics tend to think that this approach will lead to constitutional limits being seen as flexible if judges can change their minds easily based on necessity. They are mostly worried about blurred lines between the courts interpreting and making policies. In reality, prudence does not completely disregard constitutional principles but works within them. 

In conclusion, the prudential approach is the best method compared with the other recognized modalities. Since the Constitution was written broadly, interpretation is unavoidable, and the implementation of prudence is necessary. Judicial decisions continue to shape society and impact it in lasting ways, consequently affecting it in ways that are unforeseen and unpredictable. Prudence helps avoid dire consequences by allowing judges to use their discretion. When situations arise, prudence preserves legal power and real-world stability.

Rund Faraj is a sophomore majoring in Finance.

Sources 

Ashbach, Jonathan. "Against Every General Principle: Prudence in the Constitutional Statesmanship of James Madison." American Political Thought, 2021. https://doi.org/10.1086/715005. 

Buccola, Nicholas. “In Defense of Judicial Prudence: American Constitutional Theory, Virtue, and Judicial Review in Hard Cases.” The Journal Jurisprudence, December 4, 2011. https://www.researchgate.net/publication/228159373_In_Defense_of_Judicial_Prudence

Miller, Eugene. "Prudence and the Rule of Law." American Journal of Jurisprudence. 1979, https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ajj24&id=187&men_tab=srchresults

Kronman, Anthony. “Alexander Bickel's Philosophy of Prudence.” The Yale Journal Law, June, 1985. https://www.jstor.org/stable/796212

U.S. Const. Art. III, § 2, cl. 1