||The examples and perspective in this article may not represent a worldwide view of the subject. (October 2011)
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 the United States, there are various methods of constitutional interpretation:
- Textualism is when judges consult the actual language of the Constitution first, and perhaps last, according to government scholar John E. Finn, who added that the method has an "obvious appeal" for its simplicity but can be hampered when the language of the Constitution itself is ambiguous.
- Strict constructionism is when a judge interprets the text only as it is spoken; once a clear meaning has been established, there is no need for further analysis, and judges should avoid drawing inferences from previous statutes or the constitution and instead focus on exactly what was written. For example, Justice Hugo Black argued that the First Amendment's wording in reference to certain civil rights that Congress shall make no law should mean exactly that: no law, no exceptions, end of story, according to Black.
- Founders' Intent is when judges try to gauge the intentions of the authors of the Constitution. Problems can arise when judges try to determine which particular Founders or Framers to consult, as well as try to determine what they meant based on often sparse and incomplete documentation.
- Originalism is when judges try to apply the "original" meanings of various constitutional provisions.
- Balancing happens when judges weigh one set of interests or rights against an opposing set, typically used to make rulings in First Amendment cases. But this approach was criticized by Supreme Court justice Felix Frankfurter who argued that the Constitution gives no guidance about how to weigh or measure divergent interests.
- Prudentialism discourages judges from setting broad rules for possible future cases, and advises courts to play a limited role.
- Doctrinalism considers how various parts of the Constitution have been "shaped by the Court's own jurisprudence", according to Finn.
- Precedent is when judges decide a case by looking to the decision of a previous and similar case according to stare decisis, and finds a rule or principle in the earlier case to guide the current case.
- Structuralism is a method judges use by finding the meaning of a particular constitutional principle only by "reading it against the larger constitutional document or context," according to Finn.
- Functionalism.
- The Living Constitution or sometimes "loose constructionism" is when judges see the Constitution as a dynamic changing entity and that views about current society should be considered when making rulings.
- ^ a b c d e f g h John E. Finn (2006). "Civil Liberties and the Bill of Rights". The Teaching Company. Retrieved 2013-01-20. "Part I: Lecture 4: The Court and Constitutional Interpretation (see pages 52, 53, 54 in the guidebook)"
- ^ The Judiciary: The Power of the Federal Judiciary, The Social Studies Help Center
- ^ Winkler, Adam. A Revolution Too Soon: Woman Suffragists and The "Living Constitution". 76 NYULR 1456, 1463 ("Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.")
- ^ McBain, Howard Lee (1927). The Living constitution, a consideration of the realities and legends of our fundamental law, by Howard Lee McBain. the Workers education bureau press.