W.B. Fisch, Fall 2011

Assignment #6: Theories of Interpretation

The following excerpts from Supreme Court opinions illustrate a variety of approaches to interpreting the Constitution, in terms of the sources of guidance relied on. The examples are not by any means exhaustive, but represent forms of argument which have been used often enough by individual Justices over the Court's history to be regarded as at least minimally acceptable techniques for judicial self-explanation. In any event we will encounter all of them, among some others, throughout the course.

Whether any one of these forms of argument proves to be persuasive to a majority in any one case is an entirely different matter, of course. There may be disagreement about the meaning of the particular source, even among those who consider it legitimate for judges to consider it; and many scholars and judges have developed theories of interpretation which either give priority to one source over others when they conflict, or dismiss one or more as inappropriate for judicial use.

The Court collectively has never committed itself to a particular theory of interpretation. One can perhaps make at least two cautious generalizations. First, among all the acknowledgments that a judge's personal preferences and value system inevitably influence her decisions, one so seldom sees an opinion explicitly relying on them that we can assume that they are not considered legitimate authority for any decision. Second, the source of authority most frequently relied on is and has been precedent, the Court's (or particular Justices') own prior opinions.

There is an enormous literature on constitutional interpretation. An introduction and overview, with many references to more comprehensive and/or influential works, can be found in Fisch and Kay, The Legitimacy of the Constitutional Judge and the Theory of Interpretation in the United States, 42 American Journal of Comparative Law (Supplement) 517 (1994).


1.      Text and Plain Meaning

a.        Chisholm v. Georgia, 2 U.S. 419 (1793) (opinion of Wilson, J.)

b.      District of Columbia v. Heller, 554 U.S. 570 (2008) (opinion of Scalia, J.)

2. Intent of the Framers and Adoption History : Hans v. Louisiana, 134 U.S. 1 (1890)

3. Precedent and Interpretive Tradition :
        Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)
        Poe v. Ullman, 367 U.S. 497 (1961) (dissenting opinion of Harlan, J.)

4. Structure and Effective Functioning of Institutions : State of Missouri v. Holland, 252 U.S. 416 (1920)

5. Extratextual Values: Natural Law : Calder v. Bull (1798), excerpted in the Casebook pp. 453-454.

6. Extratextual Values: Contemporary Public Opinion :Harper

 v. Va Bd. Of Elections, 383 U.S. 663 (1966) (Harlan, J., dissenting)