Introduction
When studying constitutional law, students are likely to be exposed
to the idea that interpretation of the United States Constitution may
include reference to what are sometimes called "constitutional
principles"–general and abstract normative ideas that can aid or guide
attempts to glean meaning from the text and may even provide
"extraconstitutional" or "nontextual" reasons for decisions in
constitutional cases. For example, interpretation of the equal
protection clause of the fourteenth amendment might be guided by an
"antisubordination principle" or an "equal citizenship principle."
Similarly, the federalism provisions of the constitution might be
interpreted in light of a principle of "dual sovereignty" or a
principle of "state sovereign immunity."
What are constitutional principles? How do they relate to legal
theory more generally? Where do they come from? What role can they
play in constitutional interpretation and the decision of particular
cases? This entry in the Lexicon explores these questions and examines the role of principles in constitutional interpretation. As always, the Lexicon is aimed at law students, especially first-year law student, with an interest in legal theory.
What are "constitutional principles"?
The phrase "constitutional principle" is used in a variety of
senses. For example, thre phrase "constitutional principle" could
simply be another way of describe a constitutional "rule" or
"standard." (This seems to be the sense in which principle is used in
Wechsler’s famous conception of "neutral principles" of constitutional
law. See Weschler, Toward Neutral Principles of Constitutional Law,
73 HARV. L. REV. 1 (1959). ) Or we might use the phrase to pick out
matters of "principle" that are to be distinguished from matters of
"prudence" or "pragmatisim." This Lexicon entry will focus on
a more specialized or technical meaning of "principle." As I use the
phrase, "constitutional principles" will be general and abstract
normative propositions that are not themselves part of the
constitutional text. Constitutional principles can be distinguished
from rules and standards of constitutional law–principles provide
normative guidance at a higher level of abstraction and generality than
do "hard edged" constitutional rules or more "open textured"
constitutional standards. This use of principle is related to Ronald
Dworkin’s use in his early essay Hard Cases and in his book on constitutional theory, A Matter of Principle.
An example will help. Here is a passage from the majority opinion in Gonzales v. Raich:
For
example, cases such as Printz v. United States, 521 U.S. 898, 117 S.Ct.
2365, 138 L.Ed.2d 914 (1997), and New York v. United States, 505 U.S.
144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), affirm that a law is not "
‘proper for carrying into Execution the Commerce Clause’ " "[w]hen [it]
violates [a constitutional] principle of state sovereignty."
The constitutional principle of state sovereignty is not in
the text of the constitution. The text never uses the term "sovereign"
or "sovereignty" and it never refers to the states as "sovereign".
State sovereignty is not a rule of constitutional law. The
principle doesn’t provide any specific command, requirement,
prohibition, or power. Instead, the principle of state sovereignty is
best understand as shorthand for a normative conception of the powers
and immunities of the states in the federal system.
This is a bit tricky. The notion of a constitutional principle is a
bit "vague around the edges" and I haven’t provided a set of necessary
and sufficient conditions that sharply define what counts as a
constitutional principle. Nonetheless, this is a familiar idea that is
frequently invoked in constitutional theory and practice. For an
example of sophisticated use of "constitutional principles," by a
contemporary legal theorist, check out the links Jack Balkin’s work on
the method of "text and principle" at the end of this Lexicon entry.
Where to constitutional principles come from?
Or to put the question just a bit differently, what are the sources
of constitutional principles? Let’s focus on three ways in which we
might derive a constitutional principle:
Principles derived from particular clauses.
Some constitutional principles may be derived from particular clauses
or provisions of the Constitution. For example, the "free speech"
clause is vague, general, and abstract. What is the "freedom of
speech"? What constitutes an "abridgement"? On approach to answering
these questions is to posit a constitutional principle that states the
central purpose or function that the clause serves. For example, the
free speech clause might stand for a "principle of freedom of
expression" or a "principle of equality of communicative opportunity."Principles derived from constitutional structure. Another
possibility is that constitutional principles might be derived from the
structure of the constitution–either of the whole constitution or of
some identifiable part. For example, there may be a constitutional
principle of state sovereign immunity. There is not "sovereign
immunity clause" of the constitution, but it might be argued that the
Eleventh Amendment, Article III, the Tenth Amendment, and the
importance of the States to the whole structure of federalism are the
source of a general principle that favors the immunity of states from
suits in federal court.Principles Derived from Political or Constitutional Theory.
Another possibility is that some constitutional principles might be
derived from a source outside the text, for exampe, from background
considerations of political morality or constitutional theory. For
example, constitutions do not provide their own sources of normative
legitimacy, but the conditions for constitutional legitimacy could be
seen as the source of principles that would shape constitutional law.
Suppose, for example, that we concluded that the constitution is
legitimated by a theory of popular sovereignty–the constitution is
legitimate because it was ratified by the people when originally
adopted or because it is accepted by the people today. That theory of
legitimacy might then provide a constitutional principle that would
guide the interpretation of varoius provisions of the constitution.
The Role of Constitutional Principles in Constitutional Interpretation
What role do (or should) constitutional principles play in
the interpretation of the constitution and in its application to
particular cases, either inside or outside the courts? This is a
complex issue, but we can simplify it by contrasting two uses of
constitutional principle–which I shall call "direct" and "textualist."
Direct Application of Constitutional Principle
Constitutional principles might be considered to play a role in
constitutional interpretation that is equal or even superior to the
role of the text. Here, in schematic form, is how it might go:Step One: Identify
a constitutional principle (on the basis of (a) the text of a specific
clause, (b) a structural feature of the constitution, or (c) some
extraconstitutional consideration of political morality or
constitutional theory.Step Two: Apply the constitutional principle
directly to a question of constitutional law, using the principle as
the justification for a constitutional rule or doctrine that resolves a
particular case.Textualist Use of Constitutional Principles There
is an alternative way that constitutional principles might play a role
in constitutional interpretation or adjudication. A "textualist" use
of constitutional principle might proceed as follows:Step One:
Determine the relevant textual provisions of the constitution. If
these provisions are neither ambiguous nor vague with respect to
constitutional question at hand, then apply the text, but if there is
relevant vagueness or ambiguity, then proceed to step two.Step Two: Identify the constitutional principles that are relevant to the meaning of the vague or ambiguous constitutional provision.
Step Three: Resolve the ambiguity and/or adopt a construction of the vague provision on the basis of the relevant principle (or principles).
Step Four: Apply the disambiguated provision or the vagueness-resolving construction to the constitutional question at issue.
The Difference Between Direct and Textualist Use of Constitutional Principles
Most readers will immediately grasp the theoretical
significance of the distinction between direct and textualist use of
constitutional principles. Some theories of constitutitional
interpretation insist that the text of the constitution plays an
essential role in constitutional law. "Textualism" or "original
meaning originalism," for example, insist that the linguistic meaning
of the constitution is given by the "original public meaning" of the
constitutional text. It might be thought that these theories are
inconsistent with constitutional principless, but, as we have seen,
this is not necessarily the case. If constitutional principles are
used to resolve ambiguity or vagueness, then their use may be entirely
consistent with an approach that gives pride of place to the original
public meaning of the constitutional text.On the other hand, there are alternative constitutional
theories that seem more consistent with the direct use of
constitutional principles. For example, some forms of original
intentions originalism conceptualize the original intentions of the
framers as general principles: these principles (or intentions) can
then be applied directly to resolve particular cases. Similarly,
Ronald Dworkin’s approach to constitutional interpretation could be
understood as consistent with the direct approach to constitutional
principle.
Conclusion
There is much more to be said about the idea of
constitutional principles. And of course, the use of principles in
legal theory is not limited to constitutional theory. Principles can
play a similar role in statutory interpretation and in common-law
reasoning. Nonetheless, I hope this Lexicon entry has given you a basic introduction that will enable you to think about the role of principles in constitutional theory.
Related Entries
The topics raised in this Lexicon entry are connected to several others in the Lexicon series. Here are few related entries that you might want to explore:
Bibliography & Links
Jack Balkin, Original Meaning and Constitutional Redemption, Constitutional Commentary, Vol. 24, 2007
Jack M. Balkin, Abortion and Original Meaning.
Ronald Dworkin, "Hard Cases" in Taking Rights Seriously.
Ronald Dworkin, A Matter of Principle.
Herbert Weschler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
(This entry was last revised on September 22, 2007.)