Legal Terms: Theories of Judicial Interpretation and Judicial Decision-Making

theories of judicial interpretation

the different frameworks that guide how judges interpret the Constitution’s meaning and apply it to cases

originalism

look to the original meaning of the constitutional text (or other law in question) in order to apply it to the case at hand

• emphasize consistency, tradition, and fealty to
  the origins of the text; less emphasis on precedent

textualism

similarly focused on historical sources and contexts to originalism, but:

• emphasizes ordinary meaning: how a reasonably aware individual would have understood a law at the time it was enacted

• applied to cases involving statutory interpretation

• emphasize consistency, tradition, and fealty to
  the origins of the text; less emphasis on precedent

structuralism

looks to the structure of the U.S. Constitution — legal passages in their context, their placement within a law’s text as a whole, and how it interacts with other provisions in the same document

• looking to the order or sequencing of terms in a legal text, which might indicate a hierarchy or order of preference: the first things listed (may) come first because they are most important and thus deserve greater weight or prioritization above others

• goal of contextualization

prudentialism

tend to view the U.S. Constitution as a document that evolves over time: its meanings and the reach of constitutional protections expand or contract from generation to generation

• among and within these views, however, there is considerable disagreement both over how the Constitution evolves (or ought to) and the proper role of the Court in such changes

• goal of contextualization

judicial restraint

preferring limited, narrow interpretations and written decisions; and giving considerable deference to the “political” branches (Congress and the presidency)

judicial activism

greater willingness to strike down actions of the “political” branches, or the laws or policies of the various states; or when courts want to issue decisive, declarative judgments of what is constitutionally valid, such as when there are conflicts between the “political” branches, or conflicts between one or more states and the federal government

living constitutionalism

belief that the U.S. Constitution is “dynamic” – its applications and meanings can and should evolve over time, even if the literal text changes very little (if at all)

• the Constitution’s applications must shift with societal understandings of terms and values

• typically justified on one of two grounds:

  • constitutional interpretation may need to shift with changes in society in order for the Constitution (and the government) to maintain legitimacy; and/or

  • an “evolving” view of the Constitution can be seen in the thinking of many framers of the Constitution themselves and thus is consistent with their original intent

aspirationalism

looks to the underlying values of the founding era—grand ideals like liberty, equality in law, improving economic and social conditions—and tries to expand on those values, progressively, over time

• may emphasize ambitious, expansive versions of founding-era ideals and use that framing to justify extensions of existing rights (e.g., privacy rights) to new contexts or populations

formalism

a theory of judicial decision-making by which judges view legal rules as part of a domain separate from social and political influences

• law exists outside social and public policy, partisan politics, or ideological belief systems

• “what the law actually says”

• there is a “correct” outcome in every case

pragmatism

a theory of judicial decision-making that encompasses various theoretical views that emphasize themes like historical contingency, social and historical context, public values, and norms – all of which, according to pragmatists, play roles in establishing and interpreting the law

• legal institutions and codes, including the Constitution, can never be separated entirely from social and political contexts

• law is an instrument to promote social welfare

realism

a theory of judicial decision-making that places an emphasis on issues of economic power and the outcome-oriented nature of judicial decisions; the law is shaped by and embedded in social and political realities

• the critical branch of this theory often encourages interdisciplinarity, also tends to look at issues like class-based interests, the influence of corporations and capital, and the ways in which supposedly “private” rights in law, like property or contract, actually are issues of public concern