Constitutional Law, Education

Everything You Need to Know About

Constitutional Law

May 19, 2015 By Michael Stokes Paulsen

Reading and understanding the Constitution is not an especially

complicated intellectual exercise. It takes lawyers, judges, and law
professors to turn it into something di cult and convoluted.

It’s nal exam time at the nation’s law schools. That means it’s time for
professors to concoct endish hypotheticals for essay exams and for
students to cram, trying to sort out the various three-part, two-pronged,
quadruple-somersault doctrinal “tests” and “tiers of scrutiny” with which
the Supreme Court’s judicial decisions have cluttered the Constitution, and
prepare to spit back the doctrinal gobbledygook in some equally
incoherent form on the test.

This is what passes for “Constitutional Law” in our law schools these days: a
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S H ARE S hopeless mash-up of confusing half-truths, quarter-truths, and outright Privacy - Terms
 untruths, taught as “law.” For the desperate law student, I o er this super-
duper two-part mini-review of everything you really need to know about
constitutional law: part one today, and part two tomorrow.

A warning, however: this is probably not what your professor has been
teaching you. It’s an unmasking of what he or she taught—and a brief
recitation of the real, crucial questions about constitutional interpretation.
Using what I say here might yield you nothing better than a C, depending
on the instructor. But heck—that’s better than failing. Regurgitate what
follows on the test and you might just pass; learn these principles in the
next fteen minutes and you will have learned more real constitutional law
than your faithfully-attending, casebook-reading peers.

And as for the universe of non-law students out there: rst, I commend you
for your incredible good judgment! You are uncorrupted by a law school
education! And I o er you the same mini-primer on “constitutional law,” to
help you puncture the in ated pu ery of your lawyer-friends (even lawyers
need real people as friends) when they spout o about constitutional law
“doctrine” in pseudo-intellectual fashion. This primer might also help you
navigate through the fog of new Supreme Court decisions. ’Tis the season
for these too. Once you realize what the justices are up to, you can see why
it often makes so little sense.

First Principles: How to Interpret the Constitution

Ninety- ve percent of constitutional law amounts to deciding how to go

about the enterprise of reading and applying the Constitution itself. There
are, roughly, ve broad categories of techniques one might use.

First, there is the text. The Constitution is a written document, written at a

particular time, addressed to a particular political community, re ecting
certain assumptions, and designed to function as supreme written law on
an ongoing basis. The simplest, most straightforward, and most correct
387 way to interpret the Constitution is to read the words and phrases of the
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 document and apply them in accordance with the meaning the words
would have had to reasonably informed readers and speakers of the
English language at the time the document was adopted.

That really is all there is to it. Sometimes the text uses terms of art or
specialized eighteenth-century meanings that may require a little
background knowledge or understanding of history. But that is not all that
hard to acquire. In the end, simply reading and understanding the
Constitution’s text is not an especially complicated intellectual exercise. It
takes lawyers, judges, and law professors to turn it into something di cult
and convoluted. And applying the text according to its natural meaning, in
historical context, will properly answer most questions of constitutional
law.

The Text, the Whole Text, and Nothing but the Text: A Mini-Outline

Second, there is the Constitution’s structure and logic. This is really just a
slightly more sophisticated or specialized version of reading the text. It
simply posits that you should read the whole text, understand the
relationship of parts of the text to each other, and attend to the governing
structures the document creates.

Article I speci es the enumerated powers of Congress, Article II concerns

the powers of the president, and Article III the limited authority and
jurisdiction of the federal courts. The Constitution’s division of the national
government into separate, independent, co-equal branches creates our
system of separation of powers and “checks and balances.” This has
important implications for many issues of constitutional power. Likewise,
the creation of a national government that has certain limited, speci ed
powers means the states have the rest. This creates the second division of
powers, typically referred to as “federalism.”

The rest of the Constitution’s architecture is important, too. Article IV

387 further de nes the relationship of the states to each other and to the
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 national government. Article V explains how the Constitution’s text may be
amended—a speci c process that implies the document is otherwise
permanent and that its words and meaning cannot be changed through
any other method. That has important implications for constitutional
interpretation. Interpreters must not simply adopt whatever meaning they
want to the words of the text, or they are essentially doing an end-run
around the Constitution’s exclusive method for amending the document.

Article VI establishes that “this Constitution”—the written document—is the

“supreme Law of the Land” and trumps every law, regulation, or action of
any branch of the government, or any of the states. Importantly, this
includes the Supreme Court. The Constitution is supreme over the Court, not
the other way around. Don’t let your professors get away with telling you
di erently! Article VI also requires all government o cials, state and
federal, to take an oath to support “this Constitution”—a mandate that
reinforces the primacy, supremacy, and exclusivity of the Constitution’s
text. Taken together, the provisions of Article VI reinforce the obvious
correctness of the idea that constitutional interpretation is about
interpreting the Constitution itself: a single, binding, authoritative written
document.

Article VII simply says that the Constitution came into e ect once nine of
the thirteen original states had agreed to be bound by it.

The Bill of Rights—the rst ten amendments—imposed speci c limitations

on the powers of the national government. These rights trump what
otherwise would be the powers of the federal government, in the event of
a con ict. The Ninth and Tenth amendments reinforce the structural
principles of the original constitution as one with limited powers and
limited authority over individual rights.

After the Civil War, the Thirteenth Amendment banned slavery, correcting
the original document’s most serious aw. The Fourteenth made the Bill of
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 governments, too, and mandated that states provide the equal protection
of the laws to all persons. The Fifteenth Amendment forbade racial
discrimination in the right to vote. The Progressive Era added a number of
other constitutional amendments, and there have been a few other ones in
modern times—many of which greatly expanded voting rights and the
representative nature and accountability of the national and state
governments.

That’s the Constitution itself, in mini-outline. Legitimate constitutional

interpretation consists of attending to the original, natural linguistic
meaning of the text, in context, including the architecture of the
Constitution as a whole.

Beyond Text and Structure: What is the Role of “Original Intent”?

A third technique of constitutional interpretation is to look to the “original

intent” (or “original understanding” or “history” or “purpose”) of those who
adopted the text. This technique recognizes that sometimes the text’s
meaning is unclear and that evidence of historical understanding can help
clear up disagreements. A good constitutional interpreter, however, should
recognize that “intention” best functions as evidence of the meaning of the
words, not as a substitute for them. Because we have a written
constitution, what ultimately counts is the historical meaning of the words
the Constitution’s adopters used, not what they necessarily “had in mind.”

Two quick examples, both from the Fourteenth Amendment: The drafters
of the amendment were clearly intent on protecting the equal civil rights of
newly freed black slaves from state discrimination and private violence.
That was their “original intent” and the purpose to which the amendment
was directed. The framers might or might not have subjectively intended to
ban racial segregation.  Some evidence of original intent suggests that
some at the time thought segregation was just ne and dandy, while others
thought just the opposite. But what they said in the words they chose—
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S H ARE S what they enacted as supreme law—was that no state may deny to any
 person “equal protection of the laws,” and the meaning of the text prevails
over whatever their (di ering) subjective intentions or expectations might
have been. Thus, if the irreducible meaning of “equal protection” is to
forbid state classi cation for bene ts or burdens on the basis of race, that
settles the matter. Text trumps intention.

Again, the text extends the duty of equal protection to any “person.” Does
this forbid unjusti able discrimination on the basis of sex? The framers of
this amendment evidently did not have women in mind when they
mandated equal protection, but the amendment embraces women in
words. Did the meaning of the word “persons” include women at the time?
Obviously, it did. Again, text prevails over intention. Women are entitled to
the equal protection of the laws because that is the meaning of the word
person.

What types of di erent treatment of men and women might be consistent

with “equal protection” is a di erent—and harder—question.  Men and
women are alike in many ways and di erent in others.  Where there are
legitimate, core biological di erences, it is okay for government to treat
men and women di erently.  (The trick is guring out where the line is.)

The core point here is that “original intent” must be subordinate to the text
itself. Intention can help you gure out the meaning of words in historical
and linguistic context and serve as a boundary against extravagant
manipulations of the words of the text. But intention is never the master; it
is the servant of the text.

The Problem with Precedent

A fourth technique of constitutional interpretation is to look at precedent.

This gives rise to incredible confusion, for the simple reason that the
precedents hopelessly contradict one another and frequently contradict
the document itself. The problem with many bad Constitutional Law
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 courses is that they are all about the precedents, and not at all about the
Constitution.

The short answer to the problem of precedent is that some precedents are
sound—helpful interpretations of the Constitution that can help resolve
doubtful points—and other precedents are unsound, unhelpful
misinterpretations of the Constitution’s text, structure, and history. That’s
really all there is to it. The sound precedents are useful guides; the
unsound ones should be regarded as having no authority or validity
whatsoever.

Indeed, and ironically, there is one notable, sound precedent that clearly
refutes any argument for deliberately following unsound precedent: the
famous foundational case of Marbury v. Madison (1803). Marbury is one of
the very rst cases most students learn in constitutional law class. It holds
—correctly, on textual and structural grounds—that if an act of Congress
violates the Constitution, courts must follow the Constitution and not the
faithless act of Congress. In colloquial terms, the Court must “strike down”
unconstitutional acts of Congress.

What often goes unnoticed, however, is that exactly the same reasoning
applies to judicial decisions that con ict with the Constitution. If the
Constitution says one thing and judicial precedent says another, a
subsequent court, by the reasoning of Marbury, must follow the
Constitution and not the erroneous judicial precedent.

The much-beloved common-law doctrine of stare decisis—the policy of

following prior decisions of earlier courts—makes no sense when applied
to a written constitution intended to serve as supreme law. The
Constitution is supreme, not the judicial decisions misinterpreting it.

Besides, the doctrine of stare decisis has never been thought absolute, and
never been thought required by the Constitution. So the choice of when to
387 follow precedent and when not becomes wildly unpredictable and
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 seemingly arbitrary. A delicious further irony is that the Supreme Court’s
current doctrine of stare decisis appears not to require adherence to the
Supreme Court’s current doctrine of stare decisis.

So I say unto you law students (and citizens): Consider precedent for what
it may be worth in a particular instance as a guide to interpretation, but
disavow entirely the judicial doctrine of stare decisis—the utterly
indefensible practice of (sometimes!) following precedents that you are
otherwise convinced are simply wrong. Truly I say unto you: If the
Constitution says one thing and the judicial precedents say something else
entirely, you must go with the Constitution every time.

We’re almost done with my short mini-review / explosion of “Constitutional

Law.” You now know most of the legitimate—and one of the illegitimate—
techniques of constitutional interpretation, and how to apply them to cut
through the muck of the Con Law course. Tomorrow, we’ll nish the lesson
with a couple more key points: the (obvious) illegitimacy of purely policy-
driven, result-oriented “interpretation,” and an important principle
concerning what to do when a provision of the Constitution is vague,
ambiguous, or simply admits of a range of legitimate interpretations or
applications.

About the Author

MICHAEL STOKES PAULSEN

Michael Stokes Paulsen is Distinguished University Chair &
Professor of Law, at the University of St. Thomas, in
Minneapolis. He is co-author, with Luke Paulsen,
of The Constitution: An Introduction, published by Basic
Books.

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