The Modes of Constitutional Analysis: An Introduction (Part 1)

The Modes of Constitutional Analysis: An Introduction (Part 1)

Legal Sidebari

The Modes of Constitutional Analysis: An
Introduction (Part 1)
December 29, 2021
This Legal Sidebar Post is the first 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.)
Early in the United States’ history, the Supreme Court began exercising the power it is most closely and
famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison,
the Supreme Court asserted and explained the foundations of its power to review the constitutionality of
federal governmental action. If a challenged governmental action is unconstitutional, the Court may strike
it down, rendering it invalid. When performing the function of judicial review, the Court must necessarily
ascertain the meaning of a given constitutional provision before applying its interpretation of the
Constitution to the particular governmental action under review.
The need to determine the Constitution’s meaning through the use of methods of constitutional
interpretation and, perhaps, construction, is apparent from the document’s text itself. While several parts
of the Constitution do not lend themselves to much debate as to their intended meaning, much of the
Constitution is broadly worded, leaving ample room for the Court to interpret its provisions before
applying them to particular legal and factual circumstances. For example, the Second Amendment reads:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.” The Second Amendment’s text alone does not squarely resolve
whether the “right of the people to keep and bear arms” extends to all citizens or merely is related to, or
perhaps conditioned on, service in a militia. This ambiguity prompted the closely divided 2008 Supreme
Court decision that ruled in favor of the former interpretation.
The Constitution’s text is also silent on many fundamental questions of constitutional law, including
questions that its drafters and those ratifying the document could not have foreseen or chose not to
address. For example, the Fourth Amendment, ratified in 1791, does not on its face resolve whether the
government may perform a search of the digital contents of a cell phone seized incident to arrest without
first obtaining a warrant. Thus, interpretation is necessary to determine the meaning of ambiguous
constitutional provisions or to answer fundamental questions left unaddressed by the drafters. Some
commentators have also noted the practical need for constitutional interpretation to provide principles,
Congressional Research Service
https://crsreports.congress.gov
LSB10675
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

Congressional Research Service
2
rules, or standards to govern future conduct of regulated parties, as well as political institutions, branches
of government, and regulators.
Judicial review at the Supreme Court, by its very nature, can involve unelected judges overturning the
will of a democratically elected branch of the federal government or popularly elected state officials. In
response to these concerns, constitutional scholars have identified theories designed to ensure that the
Justices following them would be able to reach principled judgments in constitutional adjudication. Those
regarding themselves as originalists have clarified that the Court should rely on the Constitution’s fixed
meaning as understood by the public at the time of the Founding. This concept has become known as the
Constitution’s original public meaning. On the other hand, other commentators have questioned the
legitimacy of focusing on what the Framers, ratifiers, or members of their generation might have
considered the core meaning of a particular constitutional provision, and have instead suggested
interpretive methods that ensure the Court’s decisions allow government to function properly, protect
minority rights, and safeguard the basic structure of government from majoritarian interference.
When deriving meaning from the Constitution’s text, the Supreme Court has relied on certain “methods”
or “modes” of interpretation—that is, ways of determining the meaning of a particular constitutional
provision. As constitutional scholar Philip Bobbitt emphasized, it is possible to categorize the various
methods that have been employed when interpreting the Constitution.
This nine-part series of Sidebar posts describes the most common methods on which the Justices (and
other interpreters) have relied to argue about the Constitution’s meaning. The modes discussed in this
series are (1) textualism; (2) original meaning; (3) judicial precedent; (4) pragmatism; (5) moral
reasoning; (6) national identity (or “ethos”); (7) structuralism; and (8) historical practices. The series
concludes with a discussion of the doctrine of constitutional avoidance, which discourages federal courts
from issuing broad rulings on matters of constitutional law.
As recent controversies at the Supreme Court have demonstrated, there is significant public debate over
which sources and methods of construction the Court should consult when interpreting the Constitution—
a controversy closely related to more general disputes about whether and how the Court should exercise
the power of judicial review. Understanding these methods of interpretation may assist Members of
Congress in observing the oath they take to uphold the Constitution when performing their legislative
functions and fulfilling Congress’s role as a coequal branch of government. For example, Members of
Congress may interpret the Constitution when considering whether to vote for proposed legislation or
when a dispute arises regarding the boundaries between Congress’s own constitutional authority and that
of the executive branch (e.g., a dispute over the reach of Congress’s oversight power or the scope of
executive privilege). Knowledge of the most common methods of elaborating on the Constitution’s
meaning may also aid Senators and the Senate Judiciary Committee in examining the judicial philosophy
of individuals the President nominates to serve on the federal courts. It may also assist Members and
congressional committees in evaluating executive branch officials’ interpretations of the Constitution.

Author Information

Brandon J. Murrill

Legislative Attorney

Congressional Research Service
3
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.

LSB10675 · VERSION 1 · NEW