Legal Sidebari

The Modes of Constitutional Analysis:
Pragmatism (Part 5)
December 30, 2021
This Legal Sidebar Post is the fifth in a nine-part series that discusses certain “methods” or “modes” of
analysis that the Supreme Court has employed to determine the meaning of a provision within the
Constitution. (For additional background on this topic and citations to relevant sources, please see CRS
Report R45129, Modes of Constitutional Interpretation)
In contrast to textualist and some originalist approaches to constitutional interpretation, which generally
focus on how the words of the Constitution are understood, pragmatist approaches consider the likely
practical consequences of particular interpretations of the Constitution. That is, pragmatist approaches
often involve the Court weighing or balancing the probable practical consequences of one interpretation
of the Constitution against other interpretations. One flavor of pragmatism weighs the future costs and
benefits of an interpretation to society or the political branches, selecting the interpretation that may lead
to the perceived best outcome. For example, in United States v. Leon, the majority held that the Fourth
Amendment does not necessarily require a court to exclude evidence obtained as a result of law
enforcement’s good faith reliance on an improperly issued search warrant. Justice Byron White’s majority
opinion in Leon took a pragmatic approach, determining that “the [exclusionary] rule’s purposes will only
rarely be served” by applying it in the context of a good faith violation of the Fourth Amendment.
Notably, the Court determined that adoption of a broader exclusionary rule would result in significant
societal costs by undermining the ability of the criminal justice system to obtain convictions of guilty
defendants. Such costs, the Court held, outweighed the “marginal or nonexistent benefits.”
Using another type of pragmatist approach, a court might consider the extent to which the judiciary could
play a constructive role in deciding a question of constitutional law. According to this approach, a judge
might observe the “passive virtues” when confronted with constitutional issues in a case by adhering to
certain doctrines, including those under which a judge will avoid ruling on political or constitutional
questions. This may allow the Court to avoid becoming frequently embroiled in public controversies,
thereby preserving the Court’s institutional capital for key cases and giving more space for the democratic
branches to address the issue and reach accommodations on questions about the Constitution’s meaning.
The Supreme Court’s decision in Baker v. Carr illustrates the application of this second type of
pragmatism. In that case, Justice William Brennan, writing for the majority, debated a dissenting Justice
Felix Frankfurter about whether the Court was the proper actor to review the constitutionality of a state’s
apportionment of voters among legislative districts, or whether the plaintiffs should have sought remedies
Congressional Research Service
https://crsreports.congress.gov
LSB10679
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
from the state legislature. Justice Brennan’s majority opinion in Baker ultimately concluded that a state’s
apportionment decisions are properly justiciable matters, as an alternative holding would require those
harmed by malapportionment to seek redress from a political process that was skewed against such
plaintiffs.
Those who support pragmatism in constitutional interpretation argue that such an approach takes into
account the “political and economic circumstances” surrounding the legal issue before the Court and
seeks to produce the optimal outcome. Such an approach may allow the Court to issue decisions reflecting
contemporary values to the extent that the Court considers these values relevant to the costs and benefits
of a particular interpretation. On this view, pragmatism posits a view of the Constitution that is adaptable
to changing societal circumstances, or that, at least, reflects the proper role of the judiciary.
Critics of pragmatism argue that consideration of costs and benefits unnecessarily injects politics into
judicial decisionmaking. They argue that judges are not politicians. Rather, a judge’s role is to say what
the law is and not what it should be. In addition, some opponents of the pragmatic approach have argued
that when the Court observes the “passive virtues” by dismissing a case on jurisdictional grounds, it fails
to provide guidance to parties for the future and to fulfill the Court’s duty to decide important questions
about constitutional rights.

Author Information

Brandon J. Murrill

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10679 · VERSION 1 · NEW

---