Seven Methods of Constitutional Interpretation: An Appellate Lawyer’s Guide

Box of chocolates representing Supreme Court decisions

Interpreting Supreme Court decisions can feel akin to opening a box of chocolates, full of surprise and intrigue. Despite this complexity, the justices adhere to distinct methods of interpretation when deciphering the U.S. Constitution. Let’s delve into these methods to better understand the underlying framework that shapes these consequential decisions.

As an appellate lawyer, a fundamental part of your work is understanding these unique ways the Constitution can be interpreted. This guide will discuss seven of the most commonly employed methods of constitutional interpretation, along with notable examples from Supreme Court jurisprudence.

1. Originalism (Original Intent)

Originalism is a theory that the Constitution should be interpreted according to the original intentions of its authors. Justice Antonin Scalia was well known for his adherence to this approach. A key case in which Scalia employed originalism is District of Columbia v. Heller, 554 U.S. 570 (2008), where he interpreted the Second Amendment as protecting an individual’s right to possess a firearm.

2. Textualism

Textualists interpret the Constitution based on the ordinary meaning of the language at the time it was written. Associate Justice Clarence Thomas is a noted textualist. In United States v. Lopez, 514 U.S. 549 (1995), Thomas argued in a concurring opinion that Congress overstepped its authority under the Commerce Clause, drawing from a textualist reading of the Constitution.

3. Pragmatism

Pragmatism views the Constitution as a living document that should be interpreted in light of practical consequences. During his time on the bench, Justice Stephen Breyer was known for this approach. In Van Orden v. Perry, 545 U.S. 677 (2005), Breyer, in a concurring opinion, evaluated the constitutionality of a Ten Commandments monument on practical grounds.

4. Precedent/Stare Decisis

This method emphasizes the importance of precedent in legal decision-making. Associate Justice Elena Kagan often relies on this method. In Kimble v. Marvel Entertainment, LLC, 576 U.S. 446 (2015), Kagan upheld a longstanding precedent relating to patent law.

5. Structuralism

Structuralism interprets the Constitution based on the relationships and powers of the different branches of government. Chief Justice John G. Roberts Jr. applied this method in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Here, Roberts analyzed the structure of the Constitution and the powers it grants to Congress in upholding most of the Affordable Care Act. This case represents a significant instance of constitutional interpretation.

6. Moral Reasoning

Moral reasoning interprets the Constitution according to notions of justice, equality, and human rights. Justice Thurgood Marshall employed this approach in Furman v. Georgia, 408 U.S. 238 (1972), asserting, in a concurring opinion, that the application of the death penalty in this manner was unconstitutional.

7. Historical/Genealogical

This method looks at the historical context and evolution of the constitutional provision at issue. Justice Ruth Bader Ginsburg used this approach in United States v. Virginia, 518 U.S. 515 (1996), striking down the Virginia Military Institute’s male-only admissions policy as a violation of the Equal Protection Clause.

Strict Constructionism: The Logical Way to Interpret the Constitution

Strict constructionism posits that the Constitution should be interpreted exactly as written, eliminating subjectivity in interpretation. This method treats the Constitution as a hard anchor to settle societal disputes as to laws, providing for consistent opinions and adding credibility to the Supreme Court. This approach includes originalism, textualism, and structuralism and stands in contrast to the “living document” approach inherent in pragmatism, precedent/stare decisis, moral reasoning, and historical/genealogical interpretation.

In the author’s view, strict constructionism is the only logical method for interpreting the Constitution. Approaches that fall under the “living document” paradigm inherently introduce subjectivity, leading, at times, to perceptions that decisions are mere reflections of individual justices’ political views rather than objective interpretations of the Constitution. In contrast, methods within the scope of strict constructionism hinge solely on the constitutional text. This approach promotes consistency in constitutional interpretation, even when a justice may personally disagree with the ultimate outcome – a testament to this is clearly seen in the Sebelius decision referenced above.


The seven methods of constitutional interpretation presented here form the basis of Supreme Court justices’ decision-making. These methods, combined with an understanding of appellate oral argument, form the backbone of a successful appellate lawyer’s strategy. Understanding these methods is key to arguing and understanding decisions at the appellate level, particularly those related to the U.S. Constitution.

Image Credit: Pixabay: Rae Wallis

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