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Although the Supreme Court feels some pressure for consistency via precedent, it doesn’t seem to strive at all for consistency in interpretive approach. Thus, the Court’s opinions are all over the map when it comes to the method of constitutional interpretation. Sometimes the Court reads the Constitution broadly and dynamically; sometimes it interprets the Constitution narrowly; sometimes it becomes a textualist; sometimes it becomes obsessed with original intent. And all this can happen in the same year!

When it comes to interpreting the Constitution, the Court will pay attention to precedent as to the substantive meaning of a constitutional provision, but it will often repeatedly shift around in its interpretive method. There seems to be little attempt to develop a precedent for the appropriate method of constitutional interpretation. Institutionally, why does the Court strive for consistency with regard to substance but not consistency with regard to method?

In contrast, theorists strive to develop a consistent method of constitutional interpretation. Recently, I posted about process-based approaches to constitutional interpretation. A process-based approach seeks to define a method of interpreting the Constitution and of deciding cases that is coherent and consistent. Most process-based theorists, whether liberal or conservative, seek to articulate an approach toward deciding cases that should be adhered to at all times. They seek to articulate the best approach, not just the best approach for a particular time in our history.

There is thus a disjunction between theory and practice. Theorists seek the best interpretive method, one that is to be applied to all parts of the Constitution and consistently throughout history. In practice, however, the Constitution has been interpreted in radically different methods from case to case, as well as from one historical period to another. Different interpretive methods have been applied to different parts of the Constitution – one Amendment may be strictly construed whereas another may be read quite expansively beyond the confines of its text.

If we tried to bridge the gap between theory and practice, one way would be to change the practice – urge the Court to adopt institutionally a precedent for the appropriate method for constitutional interpretation. All justices would feel bound by precedent to employ the same basic method of constitutional interpretation, and the Court would strive for consistency in this regard. All majority opinions, therefore, would either be originalist or textualist or something else. The method of interpretation, therefore, would become more of an institutional decision rather than one left to the vagaries of each individual justice.

An alternative might be to rethink the theory. Perhaps different methods of constitutional interpretation work for different times. And perhaps different methods work for different provisions of the Constitution. Thus, one Amendment may be strictly construed whereas another may not be . . . and this is perfectly ok.

For a long time, I was on the theory side, striving to find the ideal method of constitutional interpretation. But perhaps there’s some wisdom in the practice. As haphazard and unprincipled as it is, the current practice might just be the best approach. Maybe there isn’t an ideal method after all.

But if this were so, the theory needs to catch up. Those advancing methods of constitutional interpretation rarely tie their justifications for them to a specific historical period. In other words, the question asked is which approaches are better or worse, not which approaches are better or worse for the particular times we’re living in. Maybe we should start exploring this latter question. Arguments about whether the Constitution should be strictly or expansively construed, for example, would have to examine why a particular constitutional provision at this particular point in time should be construed in such a manner. This would be a difficult and sophisticated discussion to have, but I certainly think it would be preferable to the kind of constitutional discussions we’re having now, which often just throw around hollow phrases like “strict constructionist,” “judicial activism,” and “legislating from the bench.”

Originally posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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