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Methods of InterpretationHow the Supreme Court Reads the Constitution$

Lackland H. Bloom Jr

Print publication date: 2009

Print ISBN-13: 9780195377118

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780195377118.001.0001

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Textualism and Its Canons

Textualism and Its Canons

(p.1) one Textualism and Its Canons
Methods of Interpretation

Lackland H. Bloom

Oxford University Press

Abstract and Keywords

This chapter provides a detailed discussion of several of the primary interpretive canons that the Court has employed throughout its history in discerning constitutional meaning from the text. In particular it discusses canons disapproving of strict construction, favoring plain meaning, appreciating legal terms of art, construing ambiguous language and multiple meanings, avoiding surplus and redundancy, drawing a negative inference from affirmative text, defining a power by its exceptions, and focusing on the precise words of the document.

Keywords:   canon, strict construction, plain meaning, term of art, ambiguous language, multiple meanings, surplus, redundancy, negative inference, exception defines power

I. Defining Textualism

Perhaps the most obvious method of interpreting the Constitution is to simply read its text and attempt to determine what it means. Indeed, to the lay person this may primarily, if not exclusively, be how the Constitution is interpreted. In fact, however, textual analysis is only one method of divining constitutional meaning, and it is often not a very useful one. Still, textual analysis plays a significant role in constitutional interpretation. The Supreme Court has relied on textual analysis throughout its 200-plus-year history. This chapter will discuss why textualism has been and remains an important source of constitutional understanding, identifying and critiquing different canons or rules of textual analysis that the Court has employed.

By textualism or textual analysis, I mean the attempt to discern the meaning of constitutional provisions through a close reading of the specific language of the document. Textualism is one of many accepted methods of constitutional interpretation. Other methods include original understanding, structure, precedent, doctrine, tradition, and practice, as well as standard techniques of legal reasoning. Each of these methods can be helpful and persuasive, and more often than not the Court relies on a mixture of them to justify its decisions. Sometimes the text does not speak to the particular issue before the Court. Or it may address the issue at a level of generality that is not particularly helpful. Or even if the issue was once addressed through textual analysis, it is now dominated by a thick overlay of precedent and doctrine. Occasionally, the Court will choose to interpret a constitutional provision in a manner that seems to fly in the face of the text. Still, textual analysis continues to play an important role in constitutional interpretation.

I will attempt to isolate and focus on textual analysis with the understanding that in most cases in which it is employed, it is one of several (p.2) interpretive techniques utilized by the Court. Moreover, it is not always easy or even possible to disentangle textualism from other methodologies, especially originalism. Obviously, one method of attempting to understand what the language in a document means is to try to determine what it was intended to mean by the draftsmen or ratifiers, or what it was understood to mean by informed contemporary readers. These approaches may be referred to as original intent or original understanding. In this chapter on textualism, I will provide a taste of textual analysis based on original understanding, and I will discuss that methodology in far greater depth in subsequent chapters. Likewise, to the extent that the Court relies on tradition and practice or structure as a method of defining textual meaning, I will discuss those modes of analysis in the chapters on those subjects. These distinctions are inevitably somewhat arbitrary. However, in order to focus on analytical techniques in a discrete manner, which is to a large extent the very purpose of this book, it is necessary to separate concepts that are not always readily separable. Hopefully, a sufficiently complete picture will emerge from a holistic reading of the book.

II. The Allure of Textualism

Textualism is unquestionably a leading methodology of constitutional interpretation. There are a number of explanations for its resonance. Perhaps most significantly, it is intuitively sensible. Most people believe that when they write a document, it will be capable of conveying a relatively determinate meaning to a reader, be it a letter, an article, a will, a grocery list, or a constitution. However difficult this may be for erudite scholars to grasp, it is quite obvious to the average person. In a nutshell “words have meaning.” This is especially true in the field of law where it is standard procedure for lawyers and judges to closely interpret legal texts, including statutes, regulations, contracts, wills, and prior judicial opinions. The same holds true for a constitution. In the early case of Brown v. Maryland, Chief Justice Marshall noted that

[i]n performing the delicate and important duty of construing clauses in the constitution … it is proper to take a view of the literal meaning of words to be expounded, of their connexion with other words, and of the general objects to be accomplished by the prohibitory clause, or by the grant of power.1

(p.3) Indeed the preeminence of textualism as an interpretive method may be gleaned from perhaps the most foundational of all constitutional cases—Marbury v. Madison.2 There, in the course of justifying the legitimacy of judicial review of congressional legislation, Chief Justice Marshall emphasized the written nature of the Constitution. He explained that

[t]he powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?3

Marshall was building the argument that “all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation.”4 Moreover he considered the Constitution to be quite capable of judicial application, considering that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”5 Thus for Marshall the underlying rationale for judicial review itself was dependent on an understandable and legally applicable text.

The fact that the Constitution is meant to be a binding law capable of interpretation and application by judges does not necessarily mean that in interpreting it, judges must rely on textual analysis. Indeed, the very argument that Marshall made in Marbury is a prime example of structural as opposed to textual analysis.6 Thus Marbury can hardly be read as suggesting that textual analysis is the only appropriate methodology. It does make two important points, however. First, the Constitution was intended to have a sufficiently determinate and understandable meaning in order to serve its purpose of effectively limiting the branches of government. Second, the Constitution is a law and as such is subject to interpretation by the techniques used by lawyers and judges to determine legal meaning.

Both points bolster the significance of textual analysis. Marshall’s insistence that the constitutional text is capable of yielding a determinate enough meaning to serve the purpose of maintaining constitutional boundaries makes the obvious, though crucial, point that the framers of the Constitution were capable of employing language that could be sufficiently understood by the judicial reader to accomplish that purpose. Marshall was asserting that the words in the text have meaning, and it is the duty of the judges to discover that meaning. The determinacy of language is a necessary condition of the textual enterprise. If words mean whatever the (p.4) reader wants them to mean, then textual analysis, at least as understood as an enterprise devoted to determining what the words were meant to signify, would seem to be a waste of time. Moreover, if a constitutional text is a legal text to be interpreted by the legally trained, then it stands to reason that the standard methods of legal interpretation, including textual analysis, should be employed. Chief Justice Marshall hardly invented textual analysis in Marbury. It had been around for centuries and indeed had been employed by the Supreme Court in constitutional interpretation from the very outset.7 However, the prominence of Marbury in our constitutional heritage underscores the privileged status of textualism.

Justice Scalia is perhaps the strongest contemporary advocate of textualism on the Court. In his dissent in Planned Parenthood v. Casey, he wrote that

[a]s long as this Court thought (and the people thought) that we justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments …[,] then a free and intelligent people’s attitude toward us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better…. Value judgments, after all, should be voted on, not dictated….8

Justice Scalia’s point is that textual analysis, at least carried out in a lawyer like and unbiased manner, bears the promise of bolstering the Court’s credibility against charges that it is simply imposing its own values on the country through the guise of constitutional analysis. Perhaps this is true to some extent. However, in hard cases, which are often at the heart of the Court’s docket, the text is capable of yielding multiple meanings, and the choice among plausible alternatives may well be driven by ideology or at least judicial philosophy.

In this and the next chapter, I will examine several facets of textual analysis employed by the Court throughout its history. In this chapter I will consider several of the well-recognized canons of constitutional interpretation employed by the Court, including giving the text its “plain meaning,” construing the Constitution flexibly, and construing the text to avoid surplus and redundancy, just to name a few. In the next chapter I will (p.5) consider several issues involving what Professor Akhil Amar has referred to as intratextualism, that is reading the constitutional text with reference to other parts of the document or with respect to the document as a whole. Next I will consider the important technique of reading constitutional text in light of its purpose. Finally I will look at the question of when, if at all, the Court concludes that it is justified in deviating from what would appear to be the relatively plain meaning of the text. The derivation of textual meaning from other sources, including the original understanding, tradition, practice, and constitutional structure will be considered in subsequent chapters.

A disproportionate number of the best cases illustrating textual analysis comes from the Marshall Court. This is probably attributable to a variety of factors. First, the Court had not yet accumulated a large body of precedent, doctrine, and practice to rely upon. Second, the Court did not yet have access to much of the materials setting forth the original understanding that are now available, and the methodology of original understanding as it has developed was not yet in fashion. Third, the early Court was heavily influenced by the common law method in which all of its justices would have been trained, and close textual analysis played a large role in that methodology. Finally, either Chief Justice Marshal or Justice Joseph Story wrote the vast majority of the Court’s foundational constitutional decisions during the first three-and-half decades of the nineteenth century, and both of them were excellent textual expositors. Although now over 200 years into its role as constitutional interpreter, the Court rarely has occasion to address a constitutional provision that it has never before considered, the forms of textual analysis developed during the Marshall Court remain vital and are quoted, cited, and utilized where relevant.

III. Some Basic Canons of Textualism

Over its history, the Court has developed several often utilized canons of textual interpretation. Some of these are well-established rules of thumb that apply to the interpretation of any written legal document, and others make sense only with respect to legislative enactments. Still others are concerned only with the explication of a constitution. These canons are often too general to be outcome-determinative where applicable. Moreover there are sometimes countercanons that lead in the opposite direction. Still on occasion they can prove to be useful analytical devices. They remain (p.6) well-established legal tools that will almost certainly be employed where applicable.

A. The Constitutional Text should not be given a Strict Construction

At times throughout our constitutional history, it has been argued that the Constitution should be strictly construed, arguably to avoid unnecessary errors, to defer to the more representative institutions of government and to provide a check against the injection of judicial value judgments. Chief Justice Marshall confronted this argument at the very outset of his opinion in Gibbons v. Ogden,9 the Court’s foundational exposition of the federal commerce power. In the course of invalidating a state-created monopoly over the ferry boat trade on the Hudson River, Marshall noted that “strict construction” was not controversial if it simply meant that the text should not be given a broader meaning than the language warranted.10 But there was no basis for:

[a] narrow construction which, in support [of] some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument.…11

This is arguably an example of the principle relied on throughout Gibbons that constitutional language must be read in light of its purpose, and the purpose of the grants of power to Congress was to permit it to accomplish great deeds, and as such the text must be read broadly enough to permit that to occur.12 However, Marshall clearly rejected strict construction as a rule of interpretation designed to promote judicial restraint.

Marshall returned to this theme and made the same argument even more famously in McCulloch v. Maryland where he counseled that “we must never forget that it is a constitution we are expounding.”13 He made this remark in the course of a general discussion of the nature of the Constitution and of constitutional interpretation. However, in McCulloch as in Gibbons, Marshall ultimately addressed an issue of the interpretation of congressional power and concluded that textual grants of power, in that case the Necessary and Proper Clause, must be read with sufficient liberality to (p.7) allow Congress flexibility in the accomplishment of legitimate ends.14 So as with Gibbons, this may be taken as another example of Marshall reading constitutional text in light of its purpose as opposed to an endorsement of broadly reading constitutional text in all circumstances. In the context of Marshall’s discussion of the very nature of the Constitution in McCulloch, this declaration can also be taken to mean that the Constitution should be read with sufficient flexibility to permit it “to endure for the ages to come, and consequently, to be adapted to the various crises of human affairs.”15 Moreover, Marshall also set forth the argument in McCulloch that the Constitution was a “great outline” as opposed to “the prolixity of a legal code,” and as such, it must be read with sufficient liberality to fill in the gaps, at least in order to render it effective.16 Taken as a whole then Marshall’s classic opinion in McCulloch, arguably the greatest of all constitutional opinions by the Court, is readily understood as a charter for an expansive reading of the document.

Chief Justice Marshall set the tone for much subsequent constitutional interpretation with his opinion in McCulloch. Indeed, in his concurrence in Youngstown Sheet and Tube v. Sawyer, the Korean War steel seizure case, Justice Frankfurter referred to Marshall’s “constitution we are expounding” remark as the “[t]he pole-star for constitutional adjudications.”17 For Frankfurter that required “a spacious view in applying [the] instruments” with “as narrow a delimitation of the constitutional issues as the circumstances permit.”18

Likewise, in his influential concurring opinion in Poe v. Ullman,19 an important precursor to the Court’s substantive due process privacy precedent, Justice Harlan also cited McCulloch v. Maryland as the authority for a flexible reading of the Constitution. He contended that

t]he basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government.20

Justice Harlan understood that the obvious concern about this approach would be that it created too much discretion for judges to impose their own values under the guise of constitutional interpretation. He attempted to deflect that critique by arguing that courts must be guided by history and tradition in construing the due process concept of liberty.21 The utility of (p.8) that approach will be discussed in detail in the chapter on Tradition and Practice.22

The question of how flexibly constitutional language should be read was addressed in two of the Court’s foundational Fourth Amendment cases. In Boyd v. United States, one of the earliest Fourth and Fifth Amendment cases, the Court maintained that “[a] close and literal construction deprives [constitutional protections] of half their efficacy, and leads to the gradual depreciation of the right, as if it consisted more in sound than in substance.”23 This lead the Court to conclude that it was impermissible for the government to seize private papers of a testimonial nature, a result which was subsequently abandoned by the Court.24 Although the specific result in Boyd has been rejected, its interpretive approach remains influential though not always followed. In Olmstead v. United States,25 the Court’s overly literal interpretation of the Fourth Amendment well illustrated what the Court in Boyd intended to reject. In Olmstead, the Court held that tapping of a telephone by federal authorities did not constitute a search and seizure because intangibles such as conversations are not a “person, house, papers or effect” within the coverage of the Fourth Amendment.26

This literal approach was vigorously criticized by Justice Brandeis in dissent.27 He quoted Marshall’s “Constitution we are expounding” language as well as the language from Boyd in maintaining that the Constitution should be read more flexibly. Forty years later in Katz v. United States, the Court overruled Olmstead and took a more expansive privacy-oriented approach to the purpose and coverage of the Fourth Amendment.28 The Court’s opinions in the Fourth Amendment cases from Boyd through Katz provide a famous and classic example of the Court ultimately adopting a spacious approach to constitutional language, with direct reliance on Marshall’s opinion in McCulloch. This is not to say, however, that there have been no instances since Katz in which the Court has construed the concepts of search or seizure more narrowly.29

One final example of this approach may be seen in one of the Court’s rare constitutional explications of the Copyright Clause. In Burrows & Giles v. Sarony, relying in part on a broad construction of constitutional language by the First Congress, the Court concluded that the terms writing and author in the Copyright Clause should not be restricted to books and their creators, given that “both these words are susceptible to a more enlarged definition.”30 Consequently the Court concluded that by “author,” the Constitution should be understood to mean “he to whom anything owes its origin.”31 As such, a photograph could be a “writing” and a photographer an “author” within the (p.9) meaning of the Copyright Clause.32 A literal construction of the language would almost certainly have led to the opposite conclusion.

The Court is especially inclined to read constitutional text broadly and flexibly when that text itself tends to be written in general or even vague language. Interpreting such provisions can present a serious challenge in that the very lack of specificity can easily lead to the improper imposition of the justices’ own value preferences. Justice Jackson addressed this problem in his concurrence in Edwards v. California where he argued that the Court should not shrink from attempting to give meaning to the Privileges or Immunities Clause of the Fourteenth Amendment.33 He explained that

the difficulty of the task does not excuse us from giving these general and abstract words whatever of specific content and concreteness they will bear as we mark out their application, case by case. That is the method of the common law, and it has been the method of this Court with other no less general statements in our fundamental law. This Court has not been timorous about giving concrete meaning to such obscure and vagrant phrases as “due process,” “general welfare,” “equal protection” or even “commerce among the several States.” But it has always hesitated to give any real meaning to the privileges and immunities clause lest it improvidently give too much.34

For Justice Jackson the harm from reading a provision too narrowly justified the risk of reading it too expansively. In this specific instance, however, the Court has largely stuck with the restrictive interpretation of the clause placed on it shortly after its passage by the Supreme Court in the Slaughter-House Cases 35 over strong dissents calling for a broader reading.36 The Slaughter-House Cases are indeed a leading example of an unduly narrow construction of a significant constitutional provision and will be discussed in some detail later in this and subsequent chapters.37 As a result of the narrow construction of the Privileges or Immunities Clause in the Slaughter-House Cases, the Due Process and Equal Protection Clauses of the Fourteenth Amendment have arguably been construed more broadly than was initially warranted in order to provide protection that should have been recognized under the former clause.38

The canon that the Constitution should be interpreted broadly to accomplish its purposes is not always honored. There are many instances in which that has not been done. But the canon still expresses a general if imperfect truth about the Court’s approach to constitutional (p.10) interpretation throughout its history. There is certainly not a frequently quoted countercanon that the Constitution should be interpreted tightly or narrowly.

B. The Constitutional Text should be given its Plain Meaning

In many of its foundational decisions, the Marshall Court often started with the assumption that the framers were capable draftsman and as such, as Chief Justice Marshall put it in Gibbons v. Ogden, they “must be understood to have employed words in their natural sense, and to have intended what they have said.”39 That is, as a general rule, the framers were writing in plain language rather than using legal terms of art. Marshall then relied on this “plain meaning” approach in Gibbons to explicate the meaning of the word commerce in the Commerce Clause.40 He observed that “commerce undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations. …”41 To define this crucial constitutional concept, Marshall appeared to rely largely on the common understanding of the word in everyday parlance. He took the same approach later in the opinion announcing that “[t]he word ‘among’ means intermingled with.”42 He also opined that “the power to regulate … is [the power] to prescribe the rule by which commerce is to be governed.”43

The meaning that Marshall attributed to these terms was fairly straightforward, so no further source was necessary. Often, language in the text is of such obvious meaning that no authority beyond an appeal to common usage is necessary to illuminate it. For instance in Marbury v. Madison, Chief Justice Marshall could unquestionably proclaim with no further authority that “[i]t is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that case.”44 Nothing more needed to be said to establish that a case brought in the first instance in the United States Supreme Court was not brought in the exercise of its appellate jurisdiction.45

Chief Justice Marshall relied on the plain-meaning approach as well in Sturges v. Crowninshield 46 in holding that a New York insolvency law that discharged a debtor from liability violated the clause prohibiting the passage of state laws impairing the obligations of contracts. Marshall rejected an attempt to show that the framers had more limited objectives (p.11) in mind, pointing out that “[i]t would be dangerous in the extreme, to infer from extrinsic circumstances that a case for which words of an instrument expressly provide, shall be exempted from its operation.”47 In other words, where the text is clear and applicable, there is no room for further “interpretation.”

Likewise, in the course of expounding on the nature of constitutional interpretation in the landmark case of Martin v. Hunter’s Lessee,48 Justice Story, perhaps early America’s greatest constitutional scholar, remarked that “[t]he words [of the Constitution] are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.” Story relied on this canon to refute Virginia’s argument that the Supreme Court could not constitutionally exercise appellate jurisdiction over a decision of the Supreme Court of a state, pointing out that under Article III that “[i]t is the case, then, and not the court, that gives the jurisdiction … [and] [i]f the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification as to the tribunal where it depends.”49 Here Story used the plain-meaning rule quite effectively to cut the legs out from under Virginia’s primary argument. Later in the opinion, Story was again able to use plain meaning to undermine Virginia’s claim of immunity from federal appellate review. In response to the argument that the Constitution did not permit Congress to regulate the states in their sovereign capacity,50 Justice Story noted that the Constitution “is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives,” citing Article I, section 10.51 So much for untrammeled state sovereignty.

Justice Story returned to the plain meaning of the text once more in Martin where in response to Virginia’s argument that appellate review by the Supreme Court seemed to assume that state judges might be biased, he pointed out that though he and the Court had the greatest respect for the competence and integrity of state judges, the Constitution itself seemed to exhibit concern over potential state court prejudice by providing for federal jurisdiction in cases between different states, citizens of different states, or a citizen and a state.52 Thus whether an assumption of possible state bias is warranted or not, “[t]he constitution has presumed” that it is a potential problem worth avoiding according to Story.53 Consequently, the constitutional language itself disposed of the Virginia court’s concern.

In Okanogan v. United States,54 known as the Pocket Veto case, the Court quoted the plain-meaning language of Justice Story from Martin, noted above, in the course of rejecting the argument that the word days in the (p.12) Presentment Clause referred to legislative days rather than calendar days. The Court explained that

[t]he word “days,” when not qualified, means in ordinary and common usage calendar days. This is obviously the meaning in which it is used in the constitutional provision, and is emphasized by the fact that “Sundays” are excepted. There is nothing whatever to justify changing this meaning by inserting the word “legislative” as a qualifying adjective.”55

The Court also concluded that the word adjournment in the clause was not limited to final adjournments.56 Consequently, as the president was not presented with the bill in issue ten days prior to the adjournment of the first legislative session, it did not become law when he failed to sign it.57 This is an excellent example of the Court construing common language in the text in a straightforward, nontechnical manner.

Similarly in Hawke v. Smith, the Court concluded that the term legislature, “was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A Legislature was then the representative body which made the laws of the people.”58 Consequently, it concluded that where the Constitution called for a constitutional amendment to be approved by state legislatures, it was impermissible to attempt ratification by a popular referendum. As with Okanogan, the Court made a persuasive case that even in a structural setting, words in the Constitution should be read in an ordinary as opposed to a specialized manner.

The Court continues to rely on the plain-meaning canon where appropriate. For example, recently, in City of Boerne v. Flores,59 it employed a plain reading of the text to conclude that the power to “enforce” the substantive provisions of the Fourteenth Amendment (and the Bill of Rights) simply cannot be read as permitting Congress to alter the meaning of those provisions. Therefore, Congress could not use its enforcement power to change an interpretation of the Free Exercise Clause, previously adopted by the Court. Likewise in Plyler v. Doe, the Court gave the phrase in the Fourteenth Amendment—“persons within its jurisdiction”—the rather obvious meaning of being geographically present as opposed to the strained meaning put forth by the state of being legally within the country.60 As a result, the Court concluded that the children of illegal immigrants were not excluded from the coverage of the Amendment, considering that they were physically present in Texas even if they had entered the country illegally. (p.13) And in Employment Division v. Smith, Justice O’Connor, concurring, objected to the majority’s conclusion that the Free Exercise Clause of the First Amendment provided complete protection for religious belief but not religiously based conduct, noting that the text of the clause recognized no such distinction and the Court should not read such a distinction into the text.61

A predictable problem with the plain-meaning approach, however, is that constitutional meaning will often be far less plain to some justices than to others. For instance, in the Slaughter-House Cases,62 where the Court found that a state-created monopoly in the butchering trade did not violate the recently enacted Fourteenth Amendment, Justice Swayne, dissenting, disagreed with the Court’s understanding of the meaning of text. He explained that

[n]o searching analysis is necessary to eliminate [sic] its meaning. Its language is intelligible and direct. Nothing can be more transparent. Every word employed has an established signification. There is no room for construction. There is nothing to construe. Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out.63

Contrary to Justice Swayne’s understanding, the plain meaning of the text of the Fourteenth Amendment has been one of the most hotly contested issues in constitutional law ever since.64

It is not uncommon for justices to agree upon a plain-meaning approach but disagree as to what the plain meaning is. For instance, in the Civil Rights Cases, the majority invalidated a congressional statute passed pursuant to the Fourteenth Amendment that prohibited racial discrimination in certain private businesses, pointing out that the three central protective provisions of the second sentence of Section One of the Amendment—Privileges or Immunities, Due Process, and Equal Protection—were all directed at “state action.”65 Thus for the majority, the text plainly limited congressional enforcement to addressing action by the state. Justice Harlan looked at the text of the Fourteenth Amendment through a somewhat larger lens, however, and concluded that the plain meaning was quite the opposite from that deduced by the Court in that Section Five of the Amendment authorized the Congress to enforce “the provisions of this article” and not simply the prohibitions of sentence two cited by the majority.66 Because sentence one of Section One of the Amendment defines federal and state citizenship and (p.14) does not contain a state action limitation, Congress could reach private discrimination simply by fleshing out that concept.67 This is a very nice example of a justice deriving plain meaning through a more comprehensive reading of the text.

Adamson v. California and the debate over whether the Fourteenth Amendment should be understood as applying the provisions of the Bill of Rights against the states presented another classic disagreement over plain meaning. Rejecting the argument that the Due Process Clause of the Fourteenth Amendment was intended to apply all of the provisions of the Bill of Rights against the states, Justice Frankfurter, concurring, observed that “[i]t would be extraordinarily strange for a constitution to convey such specific commands in such a roundabout and inexplicit way.”68 Justice Black, however, responded that the “the first section of the Fourteenth Amendment, taken as a whole[,]” was thought by the framers and ratifiers as “sufficiently explicit” to require the incorporation of the Bill of Rights against the states.69 From a plain-meaning perspective, Justice Frankfurter clearly had the better argument. Even if Justice Black was correct in believing that the Privileges or Immunities Clause was intended to apply all provisions of the Bill of Rights to the states, something beyond the plain meaning of the text would be necessary to make the case because, on its own, the language says no such thing.

C. Understanding Legal Terms of Art

Despite the plain-meaning rule, some words and phrases in the Constitution are clearly terms of art, that is, they are not merely elements of common understanding but rather have a technical or historical meaning.70 As Justice Chase noted in Calder v. Bull, “[t]he prohibition, ‘that no state shall pass any ex post facto law’ necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing.”71 He then turned briefly to English history to find such an explanation.72 Later in the opinion, he noted that “[t]he expressions ‘ex post facto laws,’ are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning by Legislators, Lawyers, and Authors.”73 The Court has continued to view the Ex Poste Facto Clause as a historical term of art, relying heavily on Justice Chase’s initial interpretation of it to this day.74 Once it is recognized that terms such as these have a somewhat specific historical meaning, defining that meaning requires an inquiry into the historical background of the language as well as the original understanding (p.15) at the time of the framing. For the most part, this inquiry will be discussed in greater depth in the chapters on Original Understanding.

It might seem that the term “Bill of Attainder” that appears in the same clause as Ex Poste Facto should also be interpreted as a legal term of art; however, though the Court has consulted history in the course of defining it, it has been less inclined to consider it limited to its precise historical meaning. In Cummings v. Missouri 75 and Ex parte Garland,76 the first two cases to construe the clause, the Court applied it to invalidate federal and state post-Civil War test oaths that precluded individuals unable to swear that they had not, among other things, evaded military service or sympathized with those in rebellion from entering a variety of occupations, including the practice of law and the clergy. Justice Miller, dissenting, in Cummings and Garland maintained that the term “bill of attainder” was derived from the terms attincta and attinctura, meaning “the stain or corruption of the blood” resulting in the loss of inheritance rights for those attainted.77 Citing Story’s Commentaries on the Constitution he explained that the concept carried a fairly precise historical meaning that simply did not apply to the provisions at issue in these cases.78 The majority in Cummings conceded that the test oaths were not Bills of Attainder in the most pristine historical sense, but concluded nevertheless that they carried the same impact and as such must be invalidated because “what cannot be done directly cannot be done indirectly.”79

Over 100 years later in United States v. Lovett, citing Cummings, the Court again construed the Bill of Attainder Clause broadly in terms of its purpose in order to invalidate an act of Congress that effectively dismissed several federal employees on the ground that they were subversives.80 Justice Frankfurter concurred on statutory grounds but rejected the majority’s approach to the Bill of Attainder Clause. Like Justice Miller, dissenting in Cummings, Frankfurter argued that some constitutional provisions such as the prohibition on bills of attainder have “their source in definite grievances.”81 As such, “[t]heir meaning was so settled by history that definition was superfluous.”82 Because Justice Frankfurter did not believe that the act in question was intended to punish the employees in question, it simply could not qualify as a bill of attainder, at least as that concept had been understood historically. As such, the broader purpose of the provision, if there was one, was simply irrelevant.83

Several years later in United States v. Brown, where the Court invalidated an Act of Congress that prohibited a member of the communist party from serving as an officer of a labor union, it continued its broad interpretation of (p.16) the Bill of Attainder Clause,84 concluding that “while history thus provides some guidelines … [the writings of the framers indicate that] the … Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function.”85 The dissent in Brown no longer bothered to limit the clause to its narrow historical context as had the dissents in the earlier Bill of Attainder cases but merely argued that the decision was inconsistent with precedent.86 The Court finally placed some limitation on its expansive reading of the Bill of Attainder Clause in Nixon v. GSA where it concluded that a Bill of Attainder does not exist whenever Congress fails to legislate at the most general level possible, and, furthermore, in the context of preservation of presidential records, Richard Nixon was “a legitimate class of one.”87 The Court concluded that the Congressional Act depriving former President Nixon of the immediate custody of his presidential papers was not punitive within either an historical or functional understanding of the Bill of Attainder Clause.88 The contrast between the Court’s approach to the Ex Post facto and Bill of Attainder Clauses, each of which involves somewhat unfamiliar terminology derived from distant historical events, illustrates that the Court exercises considerable discretion in determining in the first instance whether constitutional language carries a plain meaning or is a term of art. That decision will in turn be quite influential in the subsequent scope of coverage of the provision.

In Cohens v. Virginia, Chief Justice Marshall addressed the meaning of the Eleventh Amendment.89 He pointed out that the term suit was a term of art; “[i]n law language, it is the prosecution of some demand in a Court of justice.”90 He then turned to respected legal scholars such as Blackstone and Bracton for further elucidation.91 The main point was that this was a technical term that was in need of some professional explanation as opposed to a phrase with a meaning immediately evident to the lay person. Marshall then reasoned that a writ of error to a lower court from a verdict in a suit brought against that person by the state was hardly a suit prosecuted by that individual against the state within the correct meaning of the Eleventh Amendment.92 This is an example of the Court finding a term of arguably common understanding to constitute a term of art.

In one of its earliest opinions addressing the Due Process Clause, the Court in Murray v. Hoboken Land Co. proclaimed that “[t]he words ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by law of the land,’ in the Magna Charta,” quoting Lord Coke to that effect (p.17) and noting that several early state constitutions used the latter instead of the former phrase.93 The Court followed this approach in Twining v. New Jersey where it noted that

“[w]hat is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.”94

This placed a distinct historical focus on the interpretation of the concept of due process of law. The Court went on to recognize, however, that in spite of this historical focus, due process also protected against the “arbitrary exercises of the powers of government.”95 After an extensive examination of several famous English and American legal proceedings, the Court concluded that the Privilege Against Self Incrimination was not “a part of the law of the land of Magna Charta or the due process of law.”96 The Court would later reverse that conclusion97 as well as this method of analysis, substituting a more evolutionary approach to ascertain the meaning of due process of law with little or no regard to the meaning of the concept in prerevolutionary England.98 This illustrates that a concept that may have started out as a term of art can evolve into a term of common understanding.

Even terms of art will not necessarily be given a clear and static interpretation by the Court. In Rochin v. California, Justice Frankfurter writing for the majority opined in dicta that

[t]he requirements of the Sixth and Seventh Amendments for trial by jury in the federal courts have a rigid meaning. No changes or chances can alter the content of the verbal symbol of ‘jury’—a body of twelve men who must reach a unanimous conclusion if the verdict is to go against the defendant.99

Justice Frankfurter conceded that under the fundamental fairness approach that permitted different standards of protection for the federal and state systems, many states permitted civil juries to be composed of fewer than twelve persons and render nonunanimous verdicts.100 However, when faced directly with the question of whether twelve-person unanimous juries were constitutionally required, the Court affirmed Justice Frankfurter’s assertion that they were so required by the Sixth Amendment in federal courts, but (p.18) although it conceded that the right to jury trial is fundamental, it concluded that Fourteenth Amendment Due Process did not impose these rules on the states.101 Instead of adhering strictly to the historical approach stated by Frankfurter in Rochin, the Court in Williams v. Florida 102 and Apodaca v. Oregon 103 took account of the functional role that the jury plays and concluded that neither twelve members nor unanimity was essential for the jury to serve its purposes. Thus over time a purely definitional approach gave way to an approach that focused on the underlying purpose of the provision.

D. Ambiguous Language and Multiple Meanings

The plain-meaning approach will work only if there is a plain meaning. Words often have more than one meaning, however. Chief Justice Marshall expressed the point well in McCulloch v. Maryland where he observed the following:

Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use a word in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended.104

Marshall’s explication of the meaning of the words “necessary and proper in McCulloch—discussed in the next chapter—provides an excellent example of the Court confronting and then resolving questions of multiple meanings.105

Justice Johnson, concurring in Martin v. Hunter’s Lessee, also expressed strong reservations as to the ability of the Court to resolve the meaning of constitutional language through a close reading. In rejecting one of Justice Story’s textual arguments, Justice Johnson proclaimed the following:

I have seldom found much good result from hypercritical severity, in examining the distinct force of words. Language is essentially defective in precision; more so than those are aware of who are not in the habit of subjecting it to philological analysis.106

So much for textualism. It should be noted, however, that Justice Johnson was focusing on two of Justice Story’s weaker textual arguments in the majority opinion. Justice Story engaged in an arguably strained reading of the text (p.19) when he attempted to find significance in the fact that Article III refers to “all cases” but only to “controversies.”107 Starting with the plausible assumption that Congress deliberately omitted the word all before controversies, he speculated that Congress may well have believed that the specified cases were of greater importance to “national sovereignty” than the specified controversies, and consequently some of the latter but all of the former needed to be included within the federal judicial power.108 Story also argued that the phrase “shall extend” in Article III was used in the imperative sense and therefore made all federal jurisdiction mandatory. Story seemed to recognize, however, that he was only guessing as to the meaning of these terms and ultimately set the whole argument aside and moved on. In his concurring opinion, Justice Johnson noted that he found this argument implausible. His disdain for close textual analysis is at best only partially correct. As will be seen, there are many instances in which a more expansive mode of interpretation is correct. However, the Constitution is a legal document and as such, in many instances, close attention to the precise language employed will often be a helpful approach.

Sometimes the Court admits that there may be multiple meanings to a word, and indeed that words may carry multiple meanings within the Constitution itself. In Texas v. White,109 where the Court was faced with determining whether a state that had seceded during the Civil War remained a “state” for federal jurisdictional purposes as well as with respect to the legality of its actions, the Court explained that “[i]n the Constitution the term state most frequently expresses the combined idea … of people, territory, and government.”110 It noted that in some clauses the Constitution seems to focus primarily on the state as a political community (as opposed to a government), while in others it is used primarily in a “geographical sense.”111 It concluded that for purposes of the clause in which the Constitution agrees to guarantee the states a republican form of government, the term state was used to signify a political community as opposed to a government, as the clause quite explicitly distinguishes between the state and its government.112 This is an excellent example of a clause that appears to reveal which of several alternative interpretations is intended by its very own terms. Ultimately the Court concluded that Texas was acting as a state for purposes of conducting legitimate governmental business, but it was not a state when engaging in activity in support of the Civil War against the United States.113

When language is ambiguous and there is no clear guidance as to its meaning, the Court must simply do the best that it can to explicate the terms in question using a variety of analytical tools. In Nixon v. United States,114 (p.20) the Court argued that the clause giving the Senate the “sole” power to try impeachments creates a strong inference against judicial review because if the Court were to have a say on impeachment matters, then the Senate would not have the “sole” authority. Justice Stevens read the word sole rather differently from the Court, however.115 Considering that the word also appears in the parallel clause stating that the House “shall have the sole Power of Impeachment,” Justice Stevens reasoned that the framers used sole to differentiate the role of the Senate from that of the House rather than from that of the Court.116 Given the use of sole in these two complementary provisions, Justice Stevens’s reading seems more persuasive than that of the majority; however, either reading is at least plausible. It is perhaps even more plausible that both were correct; that is, that sole was meant to exclude both the House of Representatives and the courts.

In Morrison v. Olsen, where the Court upheld the constitutionality of the Independent Counsel statute, it struggled to determine whether an independent prosecutor was an “inferior” as opposed to a “principal” officer within the Appointments Clause.117 If she was a principal officer, nomination by the president and confirmation by the Senate would be required. If inferior, then appointment by a court, as was called for by the statute would be constitutional. Conceding that “[t]he line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance …[,]” the Court found the independent counsel to be an “inferior” officer on the grounds that she could be removed by an executive official; she was authorized to perform only limited duties and she was given only a limited jurisdiction.118 Justice Scalia disagreed vigorously with the Court’s analysis of these factors, but more important, he argued that they were irrelevant to the question before it.119 Instead, relying on a definition of inferior as “subordinate” from Samuel Johnson’s eighteenth-century dictionary, as well as constitutional structure and some originalist material, he argued that the independent counsel was not an inferior officer in view of her protection against removal for anything but cause, and that she was not subordinate to the Attorney General.120 Justice Scalia’s interpretation of this admittedly vague term seems far more persuasive and far better supported by traditional interpretive methodology than the majority’s approach. Still the word is easily capable of different meanings, and as the competing approaches show, those meanings can be derived through different forms of analysis.

These cases indicate that when words or phrases in the constitutional text carry multiple meanings, the Court will need to engage in further explication (p.21) in order to arrive at the “correct” meaning. Sometimes the Court will be able to justify a particular reading of a constitutional term primarily if not exclusively with the tools of textual analysis. Perhaps more often, the Court will rely on other methodologies of interpretation such as original understanding or structure to resolve the ambiguity. Even though the Court must make a choice, in many cases it is faced with a word or phrase that can plausibly carry more than one meaning, and as such more than one reading is easily defensible.

E. The Text should be Read to Avoid Surplus and Redundancy

A common canon of legal interpretation is that a text should be read to avoid rendering another portion meaningless or redundant.121 Justice Field made that argument in his dissent in the Slaughter-House Cases where he noted that under the Court’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment, the clause has no meaning or significance given that all of the privileges and immunities identified by the majority were independently protected by the Constitution prior to passage of the Amendment.122 The point was well taken and indeed, as a result of the Court’s decision, the clause, which had been intended to be a crucial substantive provision of the Fourteenth Amendment has had almost no impact at all.

In Hurtado v. California,123 the Court concluded that the Fourteenth Amendment Due Process Clause did not require that a defendant in a state criminal trial be indicted by a grand jury because the Fifth Amendment also contained a Due Process Clause and in addition required that a federal criminal defendant must be indicted by a grand jury. The Court reasoned that if due process required indictment by a grand jury then the specific provision of the Fifth Amendment so requiring would be mere surplus.124 In his concurring opinion in Adamson v. California, Justice Frankfurter argued that “[i]t ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth.”125 However, in Powell v. Alabama, the Court cut back on this approach, explaining that “[t]he rule is an aid to construction, and in some instances may be conclusive; but it must yield to more compelling considerations.…”126 Ensuring that indigent defendants in a capital case obtained adequate representation was obviously such a (p.22) compelling consideration. Consequently the Court concluded that the right to counsel, at least in limited circumstances, was extended into state criminal proceedings as a matter of Fourteenth Amendment Due Process despite the fact that the Fifth Amendment provided for due process of law while the Sixth Amendment explicitly protected the right to counsel. This could be explained by recognizing that Fourteenth Amendment Due Process is a more expansive concept than Fifth Amendment Due Process in that part of its function, at least as understood by the Court, is to apply all tenets of fundamental fairness in adjudication to the states, including some which were set out in detail in the Bill of Rights with respect to the federal government. Thus despite the identity of language, the clauses serve different purposes and as such carry somewhat different meanings.

It is quite plausible that the framers of the Fourteenth Amendment did in fact intend Fifth and Fourteenth Amendment Due Process to have the same scope and meaning and intended for the Bill of Rights to be applied against the states through the Privileges or Immunities Clause. Once the Court gutted that clause in the Slaughter-House Cases, however, that was no longer possible, so the Court turned to and arguably distorted the Due Process Clause to achieve this important goal.

In response to the argument that the Ninth Amendment was rarely relied upon by the Supreme Court, Justice Goldberg, concurring in Griswold v. Connecticut, cited the maxim proclaimed by Chief Justice Marshall in Marbury that all constitutional provisions should be presumed to mean something.127 Consequently, disagreement as to its meaning was no reason to ignore it completely.128 The Ninth Amendment provides that “[t]he Enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”129 The question was not whether the Ninth Amendment was redundant but rather whether the Court could confidently discern its scope and meaning, period. Despite Justice Goldberg’s plea in his Griswold concurrence, the Court has continued to ignore it perhaps to a very large degree because it does not really know what to make of it.

Justice Thomas raised the redundancy argument in his concurrence in United States v. Lopez to challenge the Court’s well-established doctrine that Congress has the power to regulate activities that “substantially affect” interstate commerce.130 He maintained that the “substantially affect commerce” theory renders most of the other Article I powers redundant because Congress could pass bankruptcy laws, copyright and patent laws, and maintain a postal system under the broad Commerce Clause theory.131 (p.23) Perhaps so, but as Justice Thomas must certainly realize, it is far too late in the day to uproot doctrine as deeply entrenched as the substantial affects test. Assuming that his reading is correct, there are times when precedent and doctrine overpower text, and this would be such a case.

In his concurring opinion in First National Bank of Boston v. Bellotti, Chief Justice Burger argued that the Freedom of Press Clause of the First Amendment was not intended to confer special institutional protection on the press.132 In reply to the argument that a failure to read the Press Clause as providing special protection would render it redundant, given the Speech Clause, he suggested several alternative interpretations, including that the Speech Clause protects speaking while the Press Clause protects dissemination; the Press Clause focuses specifically on disapproved historical practices such as prior restraint, and that the Press Clause focuses on the written while the Speech Clause focuses on the oral.133 A majority of the Court has never adopted any of these alternatives and has treated the Speech and Press Clauses as interchangeable. Regardless of whether his alternatives are persuasive interpretations, Chief Justice Burger’s recognition of the very need to respond to the redundancy argument is proof of its power.

The canon against surplus and redundancy does not always prevail, however. In Trop v. Dulles, Chief Justice Warren writing for a plurality addressing the Eighth Amendment’s “Cruel and Unusual Punishment” Clause questioned “[w]hether the word ‘unusual’ has any qualitative meaning different from ‘cruel.”’134 He noted that in the past, the Court had applied the provision “without regard to any subtleties of meaning that might be latent in the word ‘unusual.”’135 Thus the Court wholly ignored the potential redundancy argument with respect to this clause. However, it did explain that “[i]f the word ‘unusual’ is to have any meaning apart from the word ‘cruel[,]’ … the meaning should be the ordinary one, signifying something different from that which is generally done.”136

F. A Negative Inference can be drawn from Affirmative Text

Sometimes it is appropriate to draw a negative inference from an affirmative textual statement. Chief Justice Marshall made this point in Marbury v. Madison.137 Responding to the argument that the grant of original jurisdiction to the Supreme Court should be read as a nonexclusive grant, (p.24) that is, as a grant that Congress could supplement, Marshall proclaimed the following:

Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.138

Marshall correctly recognized that it is certainly not always appropriate to draw a negative inference from an affirmative statement. Rather, he explained that it is at least appropriate in those instances in which the failure to do so would render the text meaningless or ineffective. This would seem to be a logical conclusion. The problem in Marbury, however, was that it would not appear to be such a case. In view of the “Exceptions and Regulations” Clause that Marshall conveniently failed to mention, the line between original and appellate jurisdiction would not be “form without substance” as Marshall contended139 but instead simply an initial distribution pending further rearrangement by Congress through its constitutionally prescribed power. Thus Marshall’s interpretive principle was unassailable; however; his application is subject to serious questions.

Marshall engaged in similar reasoning in construing the Commerce Clause in Gibbons v. Ogden.140 In defining the reach of the commerce power, he stated that “[t]he enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state.”141 In other words, had the framers meant to say that Congress has the power to regulate all commerce, they would have said so plainly and would not have limited its reach to only “interstate” commerce. The word interstate has boundaries, and wholly intrastate is obviously beyond the pale. This is a sensible reading that prevails to this day.142

On the other hand, sometimes it is not appropriate to infer a negative from an affirmative. In Cohens v. Virginia, Marshall recognized that a negative should sometimes be implied from affirmative language; however, he went on to observe that “where it would destroy some of the most important objects for which the power was created; then, we think, affirmative words ought not to be construed negatively.”143 Applying this principle, Marshall concluded, quite correctly, that the affirmative grant of original jurisdiction to the Supreme Court in cases in which the state is a party should not be read as precluding appellate jurisdiction in cases in which the state is a party where a federal question is raised.144 In reaching that conclusion, (p.25) he emphasized that many federal question cases could not originate in the Supreme Court for no other reason than that the federal question may not be apparent at the outset.145 Moreover, it would preclude the Court from exercising appellate jurisdiction in cases brought in state courts involving the interpretation of treaties that would clearly be inconsistent with the intent of the jurisdictional provisions.146 In the process, he backed off from some of the “dicta” in Marbury, suggesting that Article III by its terms definitively apportioned all of the Court’s jurisdiction.147 This is a good example of the recognition of the obvious limits of an otherwise helpful canon of construction.

Likewise in the Legal Tender Cases, the Court reasoned that the clause granting Congress power to “coin money” and “regulate the value thereof” should not be read to imply that Congress could only make precious metals legal tender.148 In reaching this conclusion, the Court relied on the fact that given the purpose of the Article I powers of Congress, such as the power to coin money, “if any implications are to be deduced from them, they are of an enlarging rather than a restraining character.”149 This is similar to the argument made by Marshall in McCulloch v. Maryland with respect to the Necessary and Proper Clause, a case on which the majority in the Legal Tender Cases placed heavy reliance. Justice Field, dissenting in the Legal Tender Cases, disagreed, however, arguing that “[t]he Constitution has specifically designated the means by which funds can be raised … taxation, borrowing, coining and the sale of its public property.”150 He concluded that “[t]he designation of the means is a negation of all others, for the designation would be unnecessary and absurd if the use of any and all means were permissible without it.”151 This is often a persuasive argument; however, in this context, the majority’s inference seems stronger.

In Griswold v. Connecticut, Justice Goldberg argued that the very purpose of the Ninth Amendment was to refute the inference that the explicit enumeration of rights in the first eight amendments of the Bill of Rights should be read to mean that there were no other constitutional rights.152 In fact, he quoted Madison and Story for this very proposition. It is strong evidence as to how powerful and persuasive the inference that an affirmative grant implies a negative exclusion is if the framers of the Bill of Rights felt compelled to place an explicit disclaimer in the Constitution where they did not wish that inference to be drawn. If this is the correct reading of the Ninth Amendment, then the canon of drawing a negative from an affirmative is all that much stronger in other places (p.26) within the Constitution where the framers did not explicitly provide for the contrary.

Quirin v. Cox 153 provides another example of the Court’s conclusion that the affirmative does not necessarily imply the negative. The question there was whether Nazi saboteurs captured in the United States could be tried before military tribunals. The Court rejected the argument that because “cases arising in the land or naval forces” are excluded from the coverage of the Fifth Amendment, then all other cases including the cases involving spies and saboteurs are included within the Fifth and, by implication, the Sixth Amendment as well, entitling the defendants to a jury trial.154 The Court reasoned that the exception in the Fifth Amendment was intended to exclude cases that would otherwise be within the scope of Article III of the Constitution, and as the trial of saboteurs for violating the laws of war would not have been covered by Article III to begin with, the failure to exclude it under the Fifth Amendment should not be read as an intention to include it, thereby granting the defendants a right to a jury trial.155 The Court’s reasoning on this point is sensible in that the exclusion must be evaluated against the category to which the exclusion is attached and should not be interpreted to extend any farther.

The Court relied on the affirmative implies a negative argument in INS v. Chadha when it concluded that a one house legislative veto was not constitutionally authorized, considering that the Constitution explicitly set forth four instances in which one house of Congress could act on its own—impeachment by the House, conviction on impeachment charges by the Senate, confirmation of presidential appointments by the Senate, and ratification of treaties by the Senate.156 The “explicit, unambiguous” specification of these four single house proceedings convinced the Court that this was intended to be an exclusive list.157 The Court reached a similar conclusion in Nixon v. United States. Because the Constitution gives the Senate the “sole” power to “try” impeachments and then provides that witnesses shall be under oath, conviction shall be by a 2/3 vote and the Chief Justice shall preside, a strong inference exists that no other limitations should be implied.158 In both of these instances, the inference of and implied negative is highly plausible though not wholly beyond question.

G. Exceptions Define the Extent of Power

One method of determining what may be included in a grant of power is to consider what has been expressly excluded. Chief Justice Marshall (p.27) relied on this technique in Gibbons v. Ogden.159 In the course of attempting to determine whether the word commerce included navigation, Marshall observed that “[i]t is a rule of construction, acknowledged by all, that the exceptions from a power mark its extent.”160 Marshall then cited Article I, section 9 that provides that “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another”161 as evidence that commerce must obviously include navigation if there is to be no discrimination among ports. This is a persuasive use of the comparison between two constitutional clauses evaluated by a time-honored canon of legal construction. Later in Gibbons, Marshall used the exceptions argument again, pointing out that the clause of the Constitution that precluded Congress from prohibiting the slave trade prior to 1808 necessarily recognized the power of Congress under the Commerce Clause to regulate vessels employed in transporting persons in commerce.162

A few years later, Marshall relied on the same principle again in Brown v. Maryland.163 In the course of determining whether a tax on an imported article was covered by Article I’s prohibition on “duties on imports or exports,” he focused on the exception that allowed such duties when “[a]bsolutely necessary for executing its inspection laws.”164 He noted that

[i]f it be a rule of interpretation to which all assent, that the exception of a particular thing from general words, proves that, in the opinion of the lawgiver, the thing excepted would be within the general clause had the exception not been made, we know no reason why this general rule should not be as applicable to the constitution as to other instruments.165

Applying the rule, Marshall concluded that it indicated that the framers assumed that taxes similar to those imposed for purposes of inspection fell within the prohibition.166

H. The Court should Focus on the Precise Words of the Text and not some Paraphrased Alternative

Strict textualists on the Court insist that the Court focus on the words of the text itself as opposed to abstract concepts embodied in the text. Justice Black made this argument in his dissent in Griswold v. Connecticut where he noted that

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a (p.28) constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term ‘right of privacy’ as a comprehensive substitute for the Fourth Amendment’s guarantee against ‘unreasonable searches and seizures.” ‘Privacy’ is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures.167

Objecting to Justice Douglas’s attempt to find a right to privacy in the penumbras of several Bill of Rights guarantees, Justice Black continued, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”168

Justice Black continued this argument in his dissent in Katz v. United States 169 in the context of the Fourth Amendment. In the course of concluding that the protection against unreasonable searches and seizures applied to conversations placed from a public telephone, the Court had emphasized that the Amendment was intended to protect privacy and not simply certain “protected areas” such as houses.170 As in Griswold, Justice Black replied that the Court had no authority to “arbitrarily substitut[e] [its] language, designed to protect privacy, for the Constitution’s language, designed to protect against unreasonable searches and seizures.”171 According to Justice Black, a focus on the actual language of the Fourth Amendment would have lead to the conclusion that a telephone conversation, especially one that had not yet occurred could not reasonably qualify as “persons, houses, papers [or] effects” within the text of the Amendment.172 In response to Justice Black, the majority insisted that it was not transforming the Fourth Amendment into “a general constitutional ‘right to privacy.”’173 But as Justice Black pointed out, the concept of privacy, not mentioned in the Amendment itself loomed large in the Court’s analysis.

It may be appropriate for the Court to abstract a general principle such as privacy out of the Fourth Amendment in order to better comprehend its purpose. However, if the Court then substitutes the abstract principle for the textual language, as Justice Black charged, it may very well distort the original constitutional meaning. There can be little question that the Court’s emphasis on privacy as analytical concept under the Fourth Amendment tends to expand its coverage beyond the categories stated in the text. Whether this is simply an example of the type of generous reading favored by (p.29) the Court since McCulloch or an inappropriate expansion of constitutional meaning is open to debate.

Likewise in his concurring opinion in Terry v. Adams, Justice Frankfurter contended that by translating the phrase “any state” in the Fifteenth Amendment into “state action,” the Court has given “rise to a false direction [by implying the need to find] some impressive machinery or deliberative conduct normally associated with what orators call a sovereign state[,] when in fact all that is necessary is that “somewhere, somehow, to some extent” “state responsibility” is shown.174 For Justice Frankfurter, the addition of the word action changed and narrowed the constitutional meaning. This would indeed seem to be the case. On the other hand, the majority could have responded that Justice Frankfurter’s concept of state “responsibility” would arguably broaden the constitutional text just as much as state “action’ would narrow it.

In Kelo v. City of New London, Justice O’Connor, dissenting, argued that in two prior cases, the Court had perhaps inadvertently diluted the meaning of “public uses” in the Fifth Amendment Takings Clause by equating it with the police power, which is a very different and broader concept.175 In the same case, Justice Thomas, dissenting, made a similar point, arguing that the Court had changed the clear meaning of the “Public Use” Clause by substituting the terms “public purpose” or “public necessity,” which is not at all the same thing as the public does not have to use the property for there to be a public purpose or necessity.176 The Court’s almost certain deliberate transformation of “public use” to “public purpose” significantly changed the meaning of constitutional analysis in this area in a way which seems quite inconsistent with the clear textual language. The dissent points were well taken.

In his dissenting opinion in Gonzales v. Raich, Justice Thomas argued that the Court was expanding the coverage of the Commerce Clause well beyond the original understanding by substituting terms such as commercial, economic, production, distribution, and consumption for the term commerce, which, according to Justice Thomas, had a more defined and limited meaning.177 This led him to conclude that “[t]he majority is not interpreting the Commerce Clause but rewriting it.”178 Even if Justice Thomas is correct on this point, which he may well be, the line of precedent to which he objects is far too entrenched to dislodge at this point.

In United States v. Gonzalez-Lopez, in the course of holding that denial of a criminal defendant’s choice of counsel is a per se violation of the Sixth Amendment regardless of any proof of prejudice, Justice Scalia cautioned (p.30) that the right protected by the Sixth Amendment is “the right to counsel of choice, not the right to a fair trial.”179 However, Justice Alito, dissenting, argued quite persuasively that it was Justice Scalia who was in fact distorting the text, because what the Sixth Amendment literally protects is “‘the assistance,’ that the defendant’s counsel of choice is able to provide.”180 As such, there can be no violation if that assistance proves to be adequate.

It is inevitable that the Court will use alternative phrasing during the course of its opinions perhaps to better explain its analytical process. There is often a danger, however, as these dissents and concurrences of Justices Black, Frankfurter, O’Connor, Thomas, and Alito maintained that by substituting terminology for the language in the text, the Court will deliberately or unconsciously change constitutional meaning. The charge that the text is being altered seems to be an argument raised almost exclusively by dissenters dissatisfied with the Court’s approach. How serious of a threat this technique poses will depend to a large extent on the degree of importance placed on adherence to the text as written as well as the degree to which the substituted phrasing alters the meaning of the text. As these cases indicate, once precedent accepts and builds upon an arguably misleading paraphrase of the actual text, it will be difficult if not impossible to shift the Court’s focus back to the text itself.


(1) 25 U.S. 419, 437 (1827).

(2) 5 U.S. 137 (1803).

(3) Id. at 176.

(4) Id. at 177.

(5) Id.

(6) See Chapter 6, section II, part A.

(7) See, e.g., Chisholm v. Georgia, 2 U.S. 419, 431–32 (1793) (Iredell, J.), at 451 (Blair, J.), at 466 (Wilson, J.), 467–69 (Cushing, J.), 477 (Jay, J.).

(8) 505 U.S. 833, 1000–01 (1992).

(9) 22 U.S. 1, 188 (1824).

(10) Id.

(11) Id.

(12) See Chapter 2, section II for a detailed discussion of reading constitutional text in light of its purpose.

(13) 17 U.S. 316, 407 (1819).

(14) Id. at 415.

(15) Id.

(16) Id. at 407. Justice Story had made much the same argument a few years earlier in Martin v. Hunter’s Lessee, 14 U.S. 304, 326 (1816), noting that “[t]he constitution unavoidably deals in general language.”

(17) 343 U.S. 579, 596 (1952).

(18) Id.

(19) 367 U.S. 497, 540 (1961).

(20) Id.

(21) Id. at 542–43.

(22) See Chapter 5, section V.

(23) 116 U.S. 616, 635 (1886). See also Home Building & Loan Assn v. Blaisdell, 290 U.S. 398, 428 (1934) (the contract clause “is not absolute and is not to be read with literal exactness like a mathematical formula”).

(24) See Fisher v. United States, 425 U.S. 391, 399–401 (1976).

(25) 277 U.S. 438, 464 (1928).

(26) Id.

(27) Id. at 472–74.

(28) 389 U.S. 347 (1967).

(29) See, e.g., Smith v. Maryland, 442 U.S. 735, 742–46 (1979) (pen register recording numbers called from a telephone is not a search).

(30) 111 U.S. 53, 57 (1884).

(31) Id. at 58 (quoting Worcester).

(32) Id. at 58.

(33) 314 U.S.160, 183 (1941).

(34) Id.

(35) 83 U.S. 36, 78–80 (1872). The Court has read the clause somewhat more broadly in the recent case of Saenz v. Roe, 526 U.S. 489 (1999); however, it is too soon to tell whether Saenz is simply a unique counterexample to the narrower reading of the clause or whether it portends a more expansive reading in the future. Saenz will be discussed in more detail in subsequent chapters.

(36) Id. at 90, 93, 106 (Field, J., dissenting), 114–16, 123 (Bradley, J., dissenting), 124–26 (Swayne, J., dissenting).

(37) See Chapter I, section V, Chapter 13, section II.

(38) Saenz v. Roe, 526 U.S. 489, 527–28 (1999) (Thomas, J., dissenting) (suggesting that any effort to read the Privileges or Immunities Clause more broadly should be accompanied by a narrowing of Due Process and Equal Protection).

(39) 22 U.S. 1, 188 (1824). See also Heller v. District of Columbia, 128 S. Ct. 2788 (2008); United States v. Sprague, 282 U.S. 716, 731 (1931) (“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning …”).

(40) 22 U.S. 1, 189 (1824).

(41) Id. at 189–90.

(42) Id. at 194.

(43) Id. at 196.

(44) 5 U.S. 137, 175 (1803).

(45) In McCulloch v. Maryland, Marshall maintained that the word necessary in the Necessary and Proper Clause could easily be understood to mean convenient rather than absolutely essential. He made reference to its use “in the common affairs of the world, or in approved authors,” although he failed to cite any specific examples. 17 U.S. 316, 413 (1819). See also Cherokee Nations v. Georgia, 30 U.S. 1, 16–18 (1831) (Chief Justice Marshall noted the differences between Indian tribes and foreign nations in support of the argument that the ordinary meaning of the former is different from the latter) id. at 21–29 (Justice Johnson made similar arguments). But see Id. at 56–57 (for the argument by Justice Thompson that Indian tribes should be equated with foreign nations). And in Cohens v. Virginia, Chief Justice Marshall explained that where the letter of the Constitution would seem to extend jurisdiction to “all cases arising under” it, it must be so understood unless an exemption claimed on the “spirit and true (p.447) meaning must be so apparent as to overrule the words which its framers have employed.” 19 U.S. 264, 380 (1821). In other words, he seemed to concede that a reading based on spirit or purpose could prevail over relatively plain text, but only if the case for that reading was extremely compelling. Justice Marshall went on to note that the state of Virginia attempted to trump the text in this instance with a structural argument, but he rejected that argument as incorrect. Id. at 380–81.

(46) 17 U.S. 122 (1819).

(47) Id. at 202.

(48) 14 U.S. 304, 326 (1816). Justice Story relied on this canon on a couple of occasions in the course of his analysis. Id. at 338, 347.

(49) Id. at 338. A few years later in Cohens v. Virginia, 19 U.S. 264, 383–84 (1821), Chief Justice Marshall made similar arguments in justifying the Supreme Court’s hearing of an appeal from a Virginia state court in a criminal case.

(50) 14 U.S. at 343.

(51) Id.

(52) Id. at 346.

(53) Id. at 347.

(54) 279 U.S. 655, 679 (1929).

(55) Id.

(56) Id. at 680.

(57) Id. at 681.

(58) 253 U.S. 221, 227 (1920).

(59) 521 U.S. 507, 519–20 (1997).

(60) 457 U.S. 202, 211–15 (1982).

(61) 494 U.S. 872, 893 (1990).

(62) 83 U.S. 36 (1872).

(63) Id. at 126.

(64) See Chapter13, section II.

(65) 109 U.S. 3, 11 (1883).

(66) Id. at 46–47 (Harlan, J., dissenting).

(67) Id.

(68) 332 U.S. 46, 63 (1947) (Frankfurter, J., concurring).

(69) Id. at 74–75.

(70) See District of Columbia v. Heller, 128 S. Ct. 2783, 2800 (2008) (“the phrase ‘Security of a Free State’ and close variations seems to have been terms of art in the eighteenth-century political discourse”); United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (“‘the people’ seems to have been a term of art employed in select parts of the Constitution”); Williamson v. United States, 207 U.S. 425, 435–46 (1908) (at the time of the drafting of the Constitution, “breach of peace,” as used in the clause prohibiting arrest of legislators, did not mean a misdemeanor as it does today but rather a wide range of crimes constituting a breach of the King’s peace).

(71) 3 U.S. 386, 390 (1798).

(72) Id.

(73) Id. at 391. See also Cooley v. Board of Wardens, 53 U.S. 299, 314 (1851) (“Imposts and duties on imports, exports, and tonnage were then known to the commerce of a civilized world to be as distinct from fees and charges for pilotage”; thus the latter was not covered by the imposts and duties clause).

(74) See Stogner v. California, 539 U.S. 607, 611–15 (2003).

(75) 71 U.S. 277 (1866).

(76) 71 U.S. 333 (1866).

(77) Id. at 387 (Miller, J., dissenting).

(78) Id. at 388–90.

(79) 71 U.S. at 325.

(80) 328 U.S. 303 (1946).

(81) Id. at 321.

(82) Id.

(83) Id. at 323.

(84) 381 U.S. 437 (1965).

(85) Id. at 442.

(86) Id. at 462.

(87) 433 U.S. 425, 471–72 (1977).

(88) Id. at 475–76.

(89) 19 U.S. 264, 405 (1821).

(90) Id. at 407.

(91) Id. at 407–08.

(92) Id. at 408–09.

(93) 59 U.S. 272, 276 (1855).

(94) 211 U.S. 78, 100 (1908).

(95) Id. at 101.

(96) Id. at 105.

(97) Malloy v. Hogan, 378 U.S. 1 (1964).

(98) See Chapter 5, part V.

(99) 342 U.S. 165, 170 (1952).

(100) Id. at n.3.

(101) See Williams v. Florida, 399 U.S. 78 (1970) (Due Process does not require a twelve-person jury in state criminal case); Apodaca v. Oregon, 406 U.S. 404 (1972) (Due Process does not require a unanimous jury in state criminal cases).

(102) 399 U.S. 78, 99–103 (1970).

(103) 406 U.S. 404, 410–13 (1972).

(104) 17 U.S. 316, 414 (1819).

(105) See Chapter 2, section I, part A.

(106) 14 U.S. 304, 374 (1816).

(107) Id. at 334.

(108) Id. at 334–35.

(109) 74 U.S. 700 (1868).

(110) Id. at 721.

(111) Id.

(112) Id.

(113) Id. at 732–34.

(114) 506 U.S. 224, 230–31 (1993).

(115) Id. at 240.

(116) Id. at 241–42.

(117) 487 U.S. 654, 671 (1988).

(118) Id. at 671.

(119) Id. at 718–19.

(120) Id. at 719–23.

(121) Cohens v. Virginia, 19 U.S. 264, 391 (1821) (part of the “arising under” jurisdiction would be surplus if jurisdiction was entirely dependent on the character of the parties); TXO Products Corp v. Alliance Resource Corp., 509 U.S. 443, 471 (1993) (Scalia, J., concurring) (reading due process to prohibit excessive awards of punitive damages would render the excessive fines clause meaningless).

(122) 83 U.S. 36, 96 (1872).

(123) 110 U.S. 516, 534–35 (1884).

(124) Id. See Adamson v. California, 332 U.S. 46, 66 (1947) (Frankfurter, J., concurring) (arguing that construing the Due Process Clause as merely summarizing the other provisions of the Bill of Rights would charge “Madison and his contemporaries … with writing a meaningless clause”).

(125) 332 U.S. 46, 66 (1947). Likewise in Poe v. Ullman, Justice Harlan, dissenting, argued that the very fact that there was a Due Process Clause in the Fifth Amendment counseled against construing the Fourteenth Amendment Due Process Clause as simply incorporating the Bill of Rights against the states as it would render the Fifth Amendment Due Process Clause rather meaningless. 367 U.S. 497, 542 (1961).

(126) 287 U.S. 45, 67 (1932).

(127) 381 U.S. 479, 490–91 (1965). But see Trop v. Dulles, 356 U.S. 86, 101 n.32 (1958) where the Court suggested that it was unclear “[w]hether the word ‘unusual’ has any qualitative meaning different from ‘cruel’” in the Eighth Amendment; however, it continued by noting that if it does, then it would be “something different from that which is generally done.” Id.

(128) 381 U.S. at 491.

(129) Constitution of the United States, Ninth Amendment.

(130) 514 U.S. 549, 587–89 (1995).

(131) Id. See also Kelo v. City of New London, 545 U.S. 469, 511 (2005) (Thomas, J., dissenting) (Necessary and Proper Clause would allow government to take property for a “public purpose,” so the public use clause must require something different from a mere public purpose or it would be surplus).

(132) 435 U.S. 765, 799 (1978).

(133) Id. at 800–01.

(134) 356 U.S. 86, 101 n.32 (1958).

(135) Id.

(136) Id.

(137) 5 U.S. 137, 174 (1803). See Strauder v. West Virginia, 100 U.S. 303, 308 (1879) (the prohibitory language of the Fourteenth Amendment “implies the existence of rights and immunities”).

(138) 5 U.S. at 174.

(139) Id.

(140) 22 U.S. 1, 194–95 (1824).

(141) Id. at 195.

(142) See United States v. Lopez, 514 U.S. 549, 553 (1995) (quoting the above language from Gibbons in the course of holding that a law prohibiting a person from bringing a gun into a school zone exceeded congressional power under the Commerce Clause).

(143) 19 U.S. 264, 395 (1821).

(144) Id. at 395.

(145) Id. at 394–96.

(146) Id. at 397–98.

(147) Id. at 400–42.

(148) 79 U.S. 457, 544–45 (1870).

(149) Id. at 545.

(150) 79 U.S. at 649.

(151) Id.

(152) 381 U.S. 479, 489–90 (1965).

(153) 317 U.S. 1 (1942).

(154) Id. at 40–42.

(155) Id.

(156) 462 U.S. 919, 955 (1983).

(157) Id.

(158) 506 U.S. 224, 230 (1993).

(159) 22 U.S. 1, 191 (1824).

(160) Id.

(161) U.S. Constitution, Article I, section 9.

(162) 22 U.S. 1, 216–17 (1824).

(163) 25 U.S. 419, 438 (1827).

(164) Id.

(165) Id.

(166) Id.

(167) 381 U.S. 479, 509 (1965).

(168) Id. at 510.

(169) 389 U.S. 347 (1967).

(170) Id. at 351.

(171) Id. at 373.

(172) Id. at 365.

(173) Id. at 350.

(174) 345 U.S. 461, 473 (1953).

(175) 545 U.S. 469, 501–02 (2005) (O’Connor, J., dissenting). She cited the cases of Berman v. Parker, 348 U.S. 25, 32 (1954) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984) as examples of where the Court had misconstrued the phrases.

(176) 545 U.S. at 505–06.

(177) 545 U.S. 1, 69 (2005) (Thomas, J., dissenting).

(178) Id.

(179) 548 U.S. 140, 146 (2006).

(180) Id. at 153.