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Theories of constitutional interpretation in the US include originality, textualism, intentionalism, contextualism, constructionism, pragmatism, non-interpretivism, dynamic evolution, and natural law theory. These can be conservative or progressive, and may consider judicial precedence or outside sources.
Theories of constitutional interpretation in the United States are varied and complex, but most fall into one of several main categories. Judges charged with deciding constitutional matters may subscribe to a number of different theories including originality, textualism, intentionalism, contextualism, constructionism, pragmatism, non-interpretivism, and dynamic evolution. Fortunately, many of these interpretations are somewhat related to each other, which makes them slightly easier to understand and group together.
For example, those who take the originalist approach believe that the United States Constitution should be interpreted as close to its original meaning as possible. This is very close to constructionism, which requires a literal interpretation of every word of the constitution. These are considered very conservative judicial philosophies.
Also considered a conservative philosophy when considering theories of constitutional interpretation is textualism. This is similar to constructionism, but instead of taking the constitutional literally, judges may look to the text for contextual tools. For example, while the Constitution notes that “Congress shall not make law” limiting speech, other contextual clues in the document, such as the bans against treason, would reasonably show, from the textualist’s point of view, that not all speech is protected.
Intentionalism seeks to determine what the authors of the original Constitution, or the authors of the amendments to that Constitution, originally meant when they wrote it. Judges who follow this theory believe that the writers’ intentions can be determined through context, historical articles, or by looking at the situation lawmakers were facing at the time. In this way, the statute can be interpreted according to what the writers originally had in mind.
Other theories are a little more progressive in their view. Pragmatism, dynamic evolution, and natural law theory are just some of these views. While each has the same elements, they are also different in a few key ways.
Pragmatists and those who believe in dynamic evolution believe that the Constitution must be interpreted in the context of other decisions. This is often called judicial precedence. In such cases, other judges have set a pattern that should be followed. The dynamic evolution is similar in that it may consider alternative theories of constitutional interpretation, but may or may not give equal weight to judicial precedence.
Believers in the natural theory believe that all laws created by humans should conform to a natural, or moral, law of a higher power. According to this theory, the United States Constitution must be interpreted to agree with that higher law. Natural law theorists can be considered more conservative or liberal, depending on what their interpretations of that higher moral law are.
Similar to natural law is non-interpretivism. Those who follow this theory believe that outside sources should be used in interpreting the Constitution. In some cases, those outside sources may become more important than the words in the Constitution itself. This can be quite controversial, depending on the external source used to make decisions and the end result of those decisions.
