Judicial Interpretation

One clause, two methods

How do nine justices read one line of the Constitution and come out in different places? Not because some of them are careless. One clause of the Fourteenth Amendment has carried more weight than almost any other line in the document: no State may deprive any person of “life, liberty, or property, without due process of law.” In McDonald v. City of Chicago, five justices held that the Fourteenth Amendment applies the Second Amendment to the states, and only four of them went through that clause to get there. In Obergefell v. Hodges, five justices found a right to marry inside the word “liberty.” In Ramos v. Louisiana, the same clause carried the Sixth Amendment’s unanimity requirement into state criminal trials.

The difference is method. A justice brings a theory of what a constitution is and how its words acquire meaning, and that theory does much of the deciding before anyone reaches the facts. The activity has you read across Heller, McDonald, and Obergefell for method rather than doctrine. This reading gives you the two methods you will be looking for, and the honest limits of each.

Fixing the meaning at ratification

Originalism starts from one proposition: a written constitution means what it meant when the people ratified it, and it keeps that meaning until they amend it. So the work is historical. What did these words convey to an ordinary reader in 1791, or in 1868?

Justice Scalia’s majority in District of Columbia v. Heller (opens in a new tab) is the method at full stretch. He sets the rule for the search at the start of Part II, before any analysis: the Constitution’s words carry their normal meaning, which excludes anything not “known to ordinary citizens in the founding generation.” Founding-era dictionaries, state constitutional provisions, English history, and nineteenth-century commentary carry the rest of the opinion.

The appeal is constraint. If meaning is fixed, a judge cannot smuggle in a preference and call it the Constitution, and a citizen can know what the document requires without waiting to see who gets appointed next. The Congressional Research Service’s survey of interpretive methods (opens in a new tab) is worth reading for one distinction alone: a textualist reads the words, and an originalist asks what those words conveyed at a particular moment. The second question needs evidence the first one does not.

That evidence does not always settle things. Justice Stevens dissented in Heller using the same tools, working through the amendment’s text, its drafting history, and the ratification debates, and he concluded the right is tied to militia service. Two careful readings of one sentence, built from the same kind of evidence, and opposite results. History narrows a question without always closing it.

Letting the meaning grow

Living constitutionalism starts somewhere else. Its claim is not that the text may be ignored. It is that some provisions were written in general terms on purpose, because the drafters were laying down a principle rather than a list. A court applying that principle to a case the drafters never imagined is doing the job they left it.

Justice Kennedy’s majority in Obergefell v. Hodges (opens in a new tab) says so directly, and he says it before he reaches marriage at all. History and tradition, he wrote, “guide and discipline this inquiry but do not set its outer boundaries.” The generations that ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the full extent of freedom, on his account. So they left a charter for later generations to read as they learned its meaning.

Justice Scalia’s dissent goes after the method rather than the result. He said plainly that what the law says about marriage mattered less to him than who does the deciding, and he called the ruling “constitutional revision by an unelected committee of nine.” That is the hardest problem this approach faces. If meaning grows, someone has to say which way it grows, and in a court that someone is unelected and holds the job for life.

Defenders of the approach answer that the alternative is a constitution that hardly changes at all. Article V (opens in a new tab) has produced twenty-seven amendments in more than two centuries, and the twenty-seventh sat unratified for roughly two hundred years before the states finished it in 1992. Send every new question to that process, the argument runs, and most of them come back unanswered. Both methods are answers to a real problem. They disagree about which problem is worse.

When a method meets a precedent

Stare decisis is what happens after a court answers a question and later courts have to live with the answer. It keeps the law predictable, and it does something more practical than that: lawyers can advise clients, and states can build systems, on the assumption that yesterday’s answer still holds. But a justice who thinks the original meaning points one way and an old case points the other has to choose.

Ramos v. Louisiana (opens in a new tab) is that choice in the open. Louisiana and Oregon had long convicted people on 10-to-2 jury verdicts, and the 1972 decision in Apodaca v. Oregon let them. Evangelisto Ramos was convicted in Louisiana by such a verdict and sentenced to life without parole; almost anywhere else in the country he would have gotten a mistrial. Justice Gorsuch’s majority held that the Sixth Amendment, applied to the states through the Fourteenth, requires a unanimous verdict to convict of a serious offense. Apodaca went.

The dissent did not fight about the original meaning. Justice Alito argued from reliance. Two states had tried thousands of cases under rules Apodaca had blessed, and overruling it now imposed “a potentially crushing burden” on their courts. Justice Kavanaugh concurred and tried to discipline the doctrine itself. He proposed three questions for overruling a constitutional precedent: is it egregiously wrong, has it caused serious negative consequences, and would overruling it unduly upset reliance interests?

Notice who lined up where. Justice Gorsuch, working from original meaning, discarded a precedent nearly half a century old. Justice Kagan joined almost all of Justice Alito’s defense of it. Method does not track politics as neatly as the coverage of the Court suggests, and the cases about precedent are where that shows.

Where the disagreement becomes visible

An opinion is not a single voice, and the method is easiest to see in the places where the voices split. The majority opinion is the one that changes the law. If all you need is the rule, you can stop there.

A dissenting opinion is that argument tested by people who read the same record and were not persuaded. It is also where a justice is most direct about method, because the disagreement is the reason for writing at all. Stevens in Heller and Scalia in Obergefell both spend their opening pages on how the majority went about the job, before they reach what it concluded.

A concurring opinion is the odd one, and often the most revealing. A justice agrees with the result and writes anyway, which means the reasoning mattered enough to break from. McDonald is the clean example. Five justices agreed that the Fourteenth Amendment applies the Second Amendment right against the states. Only four of them rested that on the Due Process Clause. Justice Thomas supplied the fifth vote and said the Court was using the wrong door. The right belongs under the Privileges or Immunities Clause, which the Slaughter-House Cases drained of meaning in 1873 and no decision since has refilled.

So McDonald holds a disagreement about history that did not change the outcome. Justice Thomas asked what ordinary citizens in 1868 would have understood the Privileges or Immunities Clause to mean, which is the same question Justice Scalia asked about 1791 in Heller. He followed it to a clause the Court had abandoned, while the plurality followed a century of precedent into the Due Process Clause. Classifying an opinion’s method means working at that level, not at the level of who won.

Reading for method

The activity has you read at least one majority, one dissent, and one concurrence across the three cases. Thomas’s concurrence in McDonald, Stevens’s dissent in Heller, and Scalia’s dissent in Obergefell will cover both methods and the argument between them.

Two habits will take you further than reading more pages. The first is to find the sentence where a justice states how to read the text. It comes early, before the analysis, and it tells you what counts as evidence in everything that follows. Scalia sets his out at the start of Part II of Heller, and Kennedy sets his out before Obergefell reaches marriage.

The second habit is to ask what would have changed the outcome. An opinion resting on 1791 usage fails if the usage was different. An opinion resting on evolving understanding fails if the understanding has not moved. Naming the premise that could break is how you tell an argument from an assertion, and it is most of what the activity’s reflection asks you to produce.

Start with the Interpretation Essayist to get both frameworks in hand. When you run the Case Philosophy Analyzer on a case, treat its label as a hypothesis and test it against the sentence you found. Some opinions fit neither box, and a model trained on commentary will reach for the familiar label anyway.