Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation (see statutory interpretation). An interpretation which results in or supports some form of law-making role for the judiciary in interpreting the law is sometimes pejoratively characterized as judicial activism, the opposite of which is judicial lethargy, with judicial restraint somewhere in between. In law, the judiciary or judicature is the system of courts which administer justice in the name of the sovereign or state, and provide a mechanism for the resolution of disputes. ... // Balancing scales are symbolic of how law mediates peoples interests For other senses of this word, see Law (disambiguation). ... Legislation (or statutory law) is law which has been promulgated (or enacted) by a legislature or other governing body. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Judicial activism is the tendency of some judges to take a flexible view of their power of judicial interpretation, especially when such judges import subjective reasoning that displaces objective evaluation of applicable law. ... The neutrality of this article is disputed. ...

Interpreting the Constitution of the United States

Throughout the history of the United States, courts have used a wide variety of theories of judicial interpretation to construe the Constitution of the United States, including textualism, originalism, strict constructionism, functionalism, doctrinalism, developmentalism, contextualism (historical or facial), structuralism, or even a combination of several of these schools of thought. For example, some jurists may interpret the Constitution based on their philosophical outlook that the Constitution is a "Living Constitution," or on the opposite extreme, that it is "The Moral Constitution". Page I of the Constitution of the United States of America Page II of the United States Constitution Page III of the United States Constitution Page IV of the United States Constitution The Syng inkstand, with which the Constitution was signed The Constitution of the United States is the supreme... Page I of the Constitution of the United States of America Page II of the United States Constitution Page III of the United States Constitution Page IV of the United States Constitution The Syng inkstand, with which the Constitution was signed The Constitution of the United States is the supreme... Textualism is a formalist theory of statutory interpretation which holds that a statutes ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of... Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. ... Strict constructionism is a philosophy of judicial interpretation and legal philosophy that limits judicial interpretation to the meanings of the actual words and phrases used in law, and not on other sources or inferences. ... Functionalism is a term with several senses: For functionalism in sociology, see Functionalism (sociology). ... Doctrine, from Latin doctrina, (compare doctor), means a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system. ... In philosophy, contextualism describes a collection of views in the philosophy of language which emphasize the context in which an action, utterance or expression occurs, and argues that, in some important respect, the action, utterance or expression can only be understood within that context. ... Structuralism is best known as a theory in the humanities. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... The moral Constitution a means of understanding the U.S. Constitution which emphasizes a fusion of moral philosophy and constitutional law. ...

The textualist or strict constructionist approach

The textualist approach to interpreting the Constitution, sometimes called strict constructionism, insists on the literal meaning of a provision in the face of contrary claims that the text must mean more or less than it expressly says. This approach appeals to the promises of simplicity and determinacy. For example, Supreme Court Justice Hugo Black insisted that the First Amendment's command that "Congress shall make no law ... abridging the freedom of speech" meant exactly that, "no law." Textualism's simplicity and determinacy, however, can also be liabilities. Textual provisions, read as units in isolation, can be rigid. Continuing with the above example, although Justice Black would have said that "no law" can be passed abridging the freedom of speech, he certainly would not sensibly have said that treason was protected speech, or that shouting "fire!" in a crowded theater was protected speech. A purely textualist approach, then, can leave questions about what the text at issue actually means. Textualism is a formalist theory of statutory interpretation which holds that a statutes ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of... Strict constructionism is a philosophy of judicial interpretation and legal philosophy that limits judicial interpretation to the meanings of the actual words and phrases used in law, and not on other sources or inferences. ... Look up Literal in Wiktionary, the free dictionary Literal (from Latin litteralis, from littera, letter); taken in a non-figurative sense. ... The Supreme Court of the United States is the highest judicial body in the United States and is the only part of the judicial branch of the United States federal government explicitly specified in the United States Constitution. ... Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ... The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ... Freedom of speech is enshrined in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. ... For other uses, see Treason (disambiguation). ... Shouting fire in a crowded theater is an expression used in the U.S. judicial system to express the limits upon which free speech may be expressed under the terms of the First Amendment of the United States Constitution. ...

The originalist approach

The originalist approach aspires to interpret constitutional text in light of original intentions or understandings of the founding fathers who wrote the Constitution. Advocates of originalism, such as Justice Antonin Scalia, are centrally concerned with discovering the subjective intentions of the figures who wrote or framed particular constitutional provisions. They tend to focus on the original public meaning or understanding of a constitutional provision for the generation that ratified or amended that provision. Originalism, however, also has several liabilities, including determining what counts as evidence of intent, whose intent counts, and whether the promulgatd intent should be abstract or concrete. Accordingly, one common cricitism of originalism is that an originalist, while claiming to interpret a provision based on the original intent behind it, actually will pick and choose from a variety of sources to meet the meaning he or she wishes to give it. Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. ... Founding Fathers are persons instrumental in the establishment of an institution, usually a political institution, especially those connected to the origination of its ideals. ... Antonin Gregory Scalia (born March 11, 1936) is an American jurist and the second most senior Associate Justice of the Supreme Court of the United States. ...

The doctrinalist approach

The doctrinalist approach searches out past interpretations of the Constitution as they relate to specific problems and tries to organize them into a coherent whole, fitting the solution of the current problem at issue into that whole. Doctrinalism gives a central place to the principle of stare decisis, seeking to extend received decisions and understandings in incremental fashion to cover new cases and problems as they arise. In doing so, it attempts to preserve the continuity of the common law even if effecting change. This method is often used to teach constitutional law in American law schools, where casebooks often are organized topically. Doctrinalism, however, has its own difficulties; textualists argue that dotrinalism distracts attention from the Constitution, itself, lending too much status to commentary on the text. For example, Justice Felix Frankfurter wrote, "the ulimate touchstone of constitutionality is the Constitution itself and now what we have said about it." Another criticism, levied by jurists like Antonin Scalia, is that doctrinalism allows for too much judicial discretion. Doctrine, from Latin doctrina, (compare doctor), means a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system. ... Stare decisis (Latin: , Anglicisation: , to stand by things decided) is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Constitutional law is the study of foundational laws that govern the scope of powers and authority of various bodies in relation to the creation and execution of other laws by a government. ... // A law school is an institution where future lawyers obtain legal degrees. ... A casebook is a type of textbook used primarily by students in law schools. ... Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Associate Justice of the United States Supreme Court. ...

The developmentalist approach

The developmentalist approach builds on doctrinalism by accepting the value of incremental additions of judge-made doctrine, but goes further by enlarging the interpretive arena to include broader historical events, such asinformal practices, usages, and political culture. Developmentalists reject the notion of a static constitution or "The Moral Constitution", and instead tend to focus on "how meaning has evolved." Chief Justice Earl Warren exemplified this when he said the Constitution ought to be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society." Accordingly, proponents of developmentalism often argue the theory of the Living Constitution, which premises that the Constitution is, to some degree, dynamic. Because of this, however, developmentalism shares many of the same problems as doctrinalism. For example, it does little to advance any goal of stability, for by its very nature it commits itself to the legitimacy of what it calls "constitutional chagne" not merely from the past to the present but also from the present to an unknown future. As such, a common criticism is that it makes the Constitution "mean nothing," because it holds that it can mean "anything." To meet Wikipedias quality standards, this article or section may require cleanup. ... The moral Constitution a means of understanding the U.S. Constitution which emphasizes a fusion of moral philosophy and constitutional law. ... The Chief Justice of the United States is the head of the judicial branch of the government of the United States, and presides over the Supreme Court of the United States. ... Earl Warren (March 19, 1891 – July 9, 1974) was a California district attorney of Alameda County, the 30th Governor of California, and the 14th Chief Justice of the United States (from 1953 to 1969). ... To meet Wikipedias quality standards, this article or section may require cleanup. ...

The contextualist approach

Like originalism and textualism, the contextualist approach is concerned with an original meaning of the text itself to those who wrote the text, but instead of a subjective intent, it seeks to examine the broad context in which the provision at issue was promulgated, arguing that, in some important respect, the provision can only be understood relative to its context. This context can be facial - that is, examining why the provision is located where it is in the whole document, or it can be historical - examining the broad and long history behind the provision to determine the broadest possible intent. This was the main theory of interpretation that the Supreme Court used in the 1880s through the 1920s, resuling in such decisions as Plessy v. Ferguson, Lochner v. New York, and Bailey v. Drexel Furniture Co. For example, one main proponent of historical contextualism, Chief Justice William Howard Taft, used the broad historical context of the Fourth Amendment to determine in Olmstead v. United States that wiretapping was not subject to the Fourth Amendment's warrant restrictions because it was not a "physical" intrusion. Notably, however, this same instance shows some of the drawbacks of contextualism: in Katz v. United States, a developmentalist outlook, using evolving standards of decency, determined that the Fourth Amendment ought to protect people and not just physical places, and so wiretapping should be subject to the Fourth Amendment's warrant restrictions, too. Opponents of historical contextualism, then, often argue that a purely contextualist outlook prohibits the Constituion from adapting to different cultural, technological, and social developments. In philosophy, contextualism describes a collection of views in the philosophy of language which emphasize the context in which an action, utterance or expression occurs, and argues that, in some important respect, the action, utterance or expression can only be understood within that context. ... Holding The separate but equal provision of public accommodations by state governments is constitutional under the Equal Protection Clause. ... Holding New Yorks regulation of the working hours of bakers was not a justifiable restriction of the right to contract freely under the 14th Amendments guarantee of liberty. ... Drexel Furniture Company was fined over $6000 in tax, because of a child labor tax enacted by congress. ... William Howard Taft (September 15, 1857 – March 8, 1930) was an American politician, the 27th President of the United States, the 10th Chief Justice of the United States, a leader of the progressive conservative wing of the Republican Party in the early twentieth century, a chaired professor at Yale Law... Amendment IV (the Fourth Amendment) to the United States Constitution is one of the provisions included in the Bill of Rights. ... Olmstead v. ... It has been suggested that Telephone recording,Voice logging be merged into this article or section. ... Holding The Court extended the Fourth Amendment protection from unreasonable searches and seizures to protect individuals in a telephone booth from wiretaps by authorities without a warrant. ...

The structuralist approach

The structuralist approach proposes to decide hard cases by looking for guidance in the Constitution's general arrangement of offices and powers. In so doing, it is related to facial contextualism. That general arrangement might be characterized as a form of dmocracy or representative, deliberative, or constitutionalist government. This approach differes from textualism or strict constructionism because it notes that none of the Constitution's principal structural ideas, such as separation of powers, checks and balances, federalism, democracy, or fundamental rights, is expressly mentioned in the text. Proponents of structuralism explain and justify their decisions by advancing claims about the proper understanding of constitutional structure. Chief Justice Salmon P. Chase advanced such claims when examining in Texas v. White what deference ought to be given to decisions of Confederate states' courts once the American Civil War was over. Chief Justice John Marshall also advanced a structuralist outlook when discussing his conception of federal-state relations in McCulloch v. Maryland. Still, structuralism lends itself to opposition which argues that it is too subjective, without any formal basis for making its claims because it lacks textual, contextual, or historical support. Structuralism is best known as a theory in the humanities. ... The separation of powers (or trias politica, a term coined by French political Enlightenment thinker Montesquieu) is a super model for the governance of democratic states. ... The doctrine and practice of dispersing political power and creating mutual accountability between political entities such as the courts, the president or prime minister, the legislature, and the citizens. ... At the core, political federalism is a political philosophy in which a group or body of members are bound together (Latin: foedus, covenant) with a governing representative head. ... A fundamental right is a right that has its origin in a countrys constitution or that is necessarily implied from the terms of that constitution. ... Salmon Portland Chase (January 13, 1808 – May 7, 1873) was an American politician and jurist in the Civil War era who served as Senator from Ohio, Governor of Ohio, as U.S. Treasury Secretary under President Abraham Lincoln, and Chief Justice of the United States. ... Texas v. ... Motto: Deo Vindice (Latin: With God As Our Vindicator) Anthem: God Save the South (unofficial) Dixie (popular) The Bonnie Blue Flag (popular) Capital Montgomery, Alabama (until 29 May 1861) Richmond, Virginia (29 May 1861–2 April 1865) Danville, Virginia (from 3 April 1865) Language(s) English (de facto) Government Republic... Combatants United States of America (Union) Confederate States of America (Confederacy) Commanders Lincoln, President Ulysses S. Grant, General Jefferson Davis, President Robert E. Lee, General Strength 2,200,000 1,064,000 Casualties 110,000 killed in action, 360,000 total dead, 275,200 wounded 93,000 killed in action... John Marshall (September 24, 1755 – July 6, 1835) was an American statesman and jurist who more than anyone else shaped American constitutional law and made the Supreme Court a center of power. ... Holding Although the Constitution does not specifically give Congress the power to establish a bank, it does delegate the ability to control national economic policy, which a bank can be considered part of. ...

See also

• Judicial activism
• Separation of powers