How Judges Read The Constitution: Text, History, And Precedent

The loudest fights about the Supreme Court are usually about outcomes. We pull back the curtain on the methods that shape those outcomes—text, history, precedent, and values—and explain how different approaches to constitutional interpretation drive very different answers to the same question.

We start with textualism as the shared baseline: everyone claims fidelity to the words. From there, we dive into originalism’s focus on public meaning at the time of adoption, walking through the evidence historians and lawyers actually use—ratification debates, period dictionaries, and legal practice. That’s where examples like “domestic violence” and the word among in the Commerce Clause reveal how small linguistic shifts can have big constitutional stakes. We also tackle the internal tension among originalists over when to honor long-settled precedent that conflicts with historical meaning.

Then we turn to doctrinalism and living constitutionalism. Doctrinalism prizes stability, treating precedent as the main guide for today’s disputes. Living constitutionalism ranges from doctrine-first approaches to value-forward readings that elevate principles like liberty, equality, dignity, and privacy. We lay out the tradeoffs without the caricatures: originalism risks rigidity but secures democratic legitimacy through Article V, while living approaches offer adaptability at the cost of giving judges more room to craft policy under the banner of principle.

We also retire the stale activism versus restraint cliché. Counting how often the Court strikes laws tells us little about whether it follows the right sources in the right order. And yes, we unpack the headline-ready “the Constitution is dead” line often pinned to Justice Scalia, placing it in context as a critique of free-form updating rather than a dismissal of the text. If you want to understand why today’s opinions read like history seminars—and why that’s healthy for public debate—this conversation is your guide. Subscribe, share, and tell us: which method should lead when text, history, and precedent collide?

Check Out the Civic Literacy Curriculum!

School of Civic and Economic Thought and Leadership

Center for American Civics

Chapters

• 1:32 Setting The Stage: Interpretation
• 1:49 Textualism As The Baseline
• 2:42 Originalism: What Words Meant Then
• 4:11 Evidence From Ratification Debates
• 5:41 Terms That Changed: Commerce And Among
• 7:31 Precedent Versus Original Meaning
• 8:59 Is Originalism Really New
• 10:18 Doctrine And The Role Of Precedent
• 12:01 Living Constitutionalism Explained
• 13:51 Critiques On Both Sides
• 15:29 Activism Vs Restraint: A Bad Frame
• 17:48 Scalia’s “Dead Constitution” In Context

Transcript

SPEAKER_00: 0:46

Welcome back to Civics in the Year. Today we have Dr. Beyenberg back with us, and we're talking about kind of the Supreme Court and different ways to interpret the Constitution. So, Dr. Beinberg, what are the different ways people interpret the Constitution?

SPEAKER_01: 1:02

Right. So it's worth emphasizing that most judges are use a multiplicity of ways to interpret the Constitution. Some of them think that a few of those are out of bounds, but most of them think that there are several that are legitimate. They think that there's a ranking of them when they conflict. So it's worth just emphasizing that, right? Even an originalist judge, and I'll define that term in a minute, for example, will often cite doctrine and care about what doctrine looks like. So the question that we'll have is sort of what they do if there's a tension. So the basic sort of starting point in some ways is textualism, which is basically that you're trying to follow what the text could do. And I think pretty much everybody will profess to be doing that. The question comes: if there's ambiguities in the text, sort of what do you use to sort of clarify that? So the I think at this point, probably the most popular sort of corollary to it is originalism at this point. And originalism effectively argues that when trying to understand a piece of text in law, you should try to understand basically how it would have been understood at the time that that text was composed. It's worth noting, originalism doesn't say that you can't ever change the Constitution. In fact, it's very emphatic that you do with Article V, but it doesn't just say, like, what did the founders think? And we're sort of locked into that until the end of time. So what does that mean in practice for an originalist? Well, an originalist would say that if you're looking at a piece of text, you would want to know, and there's a little bit of ambiguity among some of the high-level scholars, but basically, how would either the average person, or for more technical terms, the average lawyer have understood that, right? The average person doesn't know what ex post facto law means, but the lawyer would, you know, in the 1770s and 80s. And so the kinds of evidence that they really like looking to would be the ratifying conventions. If a skeptic of the Constitution says the Constitution means this and it's terrible, and a defender of the Constitution says the Constitution would mean this and it's great, then you can pretty get it, then you can get a sense that that probably was what the Constitution meant. So, for example, with judicial review. And so an originalist would say, this is how lawyers do contract law. What did the parties think that they were signing? This is how you try to read Shakespeare, right? You have a little glossary often on the sidebar that has how terms have evolved. So just again, as an example of this that I've used before, but I think illustrates it really cleanly, right? The term domestic violence has a very, very different meaning today in terms of like spousal battery than it would have in the 1770s and 80s when it meant sort of an insurrection, right? So an originalist would say that you effectively almost need that kind of glossary on the sidebar of how are these terms understood at the time? Uh, you know, commerce, does that just mean everything involving the economy? Does that mean a narrower meaning of trade? I mean, even the commerce clause, for example, one that I think is also easy to lose is it says commerce among the states. We in contemporary politics, or in contemporary usage, I should say, use among to mean just more than one, right? But at the time, then Grammar Snobbs would say, no, among is basically if you have between but with more than two, right? So we would just say you can have between like three states or something like that. But they would say it means more than two. So that has obviously a little bit of a different implication of what you think the commerce clause means if it's commerce between the states or commerce just among the states. And so for an originalist, they very much have the idea that the constitution ought to change, that the constitution is supreme, but they recognize, and if you want to sort of follow up with this, you should go back and listen to the podcast we did on both judicial review uh and article five, since they're all sort of related in this. But an originalist would say effectively, the awesome power of overturning legislation or executive action only comes from enforcing the supremacy of the Constitution as it is, not what a judge thinks it ought to be. Now, originalists will, for example, if they're looking at old doctrine, this is where you get some splits, even among some justices that we think are similar. What do you do if you have, say, you know, 80 years of bad doctrine because they weren't doing originalism very seriously at the time and then just sort of stacked precedent on themselves? Some of the originalists will still say there comes a point when you just sort of let the original and meaning sort of take secondary effect to the uh to the doctrine, but others would say no, like our loyalty is to the Constitution. I guess one other kind of final thing on originalism that I would I would say is that there's often this argument that sort of originalism was invented in the 1960s or the 1970s. That's not accurate. The term was invented, but the sort of basic idea of what did the the, you know, the first Continental Congress think that, you know, the Article III meant or something like that, right? If you look at Supreme Court, like a typical Supreme Court case from the 1920s, it looks very much like a modern originalist case in terms of the kinds of evidence that it used. It's much more methodologically sophisticated because you've had decades of law professors nerding out over like what kinds of evidence matters and how you rank it and all that. But the basic concept is the same. The term sort of pops up, just like in the way in the, you know, in the US Constitution it says mail. It doesn't say snail mail because they all mail with snail mail. Creating email means that you then need to sort of create a clarifying term. And the term originalism uh effectively uh effectively does that. But it's effectively just trying to understand how a piece of text would have been understood at the time that that text was created. For the 14th Amendment, that's in the 1860s. You know, for the progressive amendments, it's in the progressive era, and so on and so forth. So that's originalism. Doctrinalism or doctrine or common law, the terms are very, but effectively, what have courts done before? Effectively, you're trying to pay attention to precedents in this case. So we have stacks of precedent, or if we have stacks of precedent that seem potentially a little different, which one do we think is the most relevant here? And again, this is not necessarily incompatible with original originalism, original meaning if those precedents are consistent with it. If they're you know inconsistent with it, then you get might get potentially uh a conflict. But doctrine is something, again, all justices will say that they do it. Every judge will say that they do it. The and so though those are, I think, the most sort of basic things. And then we get a little more, a little more expansive in terms of the definition. And every almost every justice will say that those two uh are the appropriate ones. If there is no precedent, for example, Justice Kagan will still sound like an originalist, if it's basically something that's never been dealt with by the courts before. But she's much more inclined, for example, to say if we've got a bunch of doctrine for 80 years, we're gonna stick with that doctrine, right? So the term originalist really is like which one they think is the most important versus the term that gets sort of bandied around as the counter to originalism is living constitutionalism. But it's not really quite the same symmetry in the sense that living constitutionalism is effectively a cluster of a set of theories that are a little more expansive in terms of interpreting the constitution. So some living constitutionalists will just emphasize doctrine. How's our doctrine? How's our development? We don't care what the original meaning was if it's intention with the doctrine. That's probably the most common kind of living constitutionalists. What do our current practices look like? The more sort of expansive version, and there's law professors love slapping all sorts of goofy names on it, aspirationalism, non-interpretivism, these are things that only scholars could love. But effectively, some of these are going to say, what are the really abstract, high-level values that we can find in the Constitution and try to enforce those? So things like liberty, equality, dignity, privacy, right? These aren't necessarily in the Constitution in a direct manner, but a living constitutionalist would say that we should be trying to interpret the Constitution sort of in service of those values that we think are sort of supportive of the Constitution, right? The critique of originalism is that often stuff is hard to change. And so you can end up with the so-called dead hand of the past, where you're bound by something if you don't think that the amendment process is feasible. Again, go back to the Article V session for why that's probably overstated. But the critique that originalism is it makes it sort of too hard to change things. The critique of living constitutionalism, in a sense, is either that it's not making the constitution supreme, or it's making sort of unelected judges make policy, or particularly if you get to those more abstract levels. So, you know, who do who understands what the proper meaning of equality or liberty are? Is that the founding generation? Is that the philosophy department at ASU today? Is that right, who sort of values? Is that Christianity, a natural law, right? That's another interpretation that used to float around. So, you know, each of the constitutional theories has sort of theoretical disadvantages from them. Living constitutionalism's broadly that it's moving away in some sense from the constitution's text. Originalism, particularly a more strictly understood version, is that it makes it harder, it makes it less flexible. But in some sense, that's a double-edged sword. Because an originalist would say that's precisely what the goal is, is a constitution is trying to lock things in until you've systematically changed it through Article V.

SPEAKER_00: 10:40

So two things I want to ask. When I taught APGov, we had words like judicial restraint and judicial activism to kind of talk about that. Would it be fair to say that originalism and the doctrinalism are more of that judicial restraint, whereas living constitutionalism would be more of the judicial activism, or is it not that simple?

SPEAKER_01: 11:02

It's definitely not that simple. Those terms sort of popped up in the 1970s and 80s. 60s, I'd say actually the 60s through the 80s. Judicial activism was a term that was used by critics of the Warren and Berger courts who argued that the courts were doing a lot more policy making than sort of, in a sense, boring constitutional interpretation. And so therefore they were sort of being active beyond their role. Contemporary, uh, and then conversely, judicial restraint is being sort of more of either a boring judge or just simply not overturning and striking things down. More contemporary legal scholars of both camps don't like those terms anymore because an originalist would say, if you're supposed to strike something down and the court doesn't, in one sense that looks like judicial restraint. But an originalist would say, well, if the constitution requires me to strike down an unconstitutional law, that's not, it might be restraint in a sense, but that's not a good thing. That's sort of failing to enforce the constitution in a meaningful way. That and so I I always chide my students if they use those terms. And again, it's easy because that was a common term that was the common sort of framing or binary. But it basically restraint versus activism is strictly read, is about basically how much the court is doing, which is a separate question from what should the court be doing? How like a quantity versus a quality question. So yeah, so during the sort of 50s, 60s, 70s, Warren and early burger courts, the justices were not very interested in originalism. And so originalist critics or proto-originalist critics, because then they weren't really using the term, would say the courts are sort of stepping outside their their role. So the more sort of sophisticated critiques now are about how much is the court doing versus is it actually doing the right things it's supposed to do and not doing the things that it isn't supposed to do? So I understand why you did that. Lots of people walk into it, but it's a great question. But those terms have really fallen out of favor, really fallen out of favor. Almost no scholars will use them today. So that's a really great clarifying question.

SPEAKER_00: 13:16

And then my other question is so in 2013, just as Antonia gave a talk, and I think a lot of what he said was taken out of context, but he was essentially arguing that the constitution is not a living document, and he utilized the words the constitution is dead. So would that be an example of originalism, or is that more of an example of he just doesn't agree with the living constitutionalism?

SPEAKER_01: 13:40

Yeah. So he he he was making basically, I actually was reading one of his co-authors just unrelatedly a couple days ago, one of his co-authors sort of had said at the time, you were being flippant and fun, but like that's not really uh what you mean. So he that that was effectively indeed a critique against the living constitutionalism. Because he goes on to say, you know, I don't like the living constitutionalism any more than I like a living contract or a living marriage vow, where you can just sort of keep making it up and remaking it as you go along. You sort of know what you agreed to. He was just sort of again flippantly playing along with that. Because yeah, he goes on and says, I like my constitution dead, dead, dead, or something. He gets very theatrical, as Celia was fond of doing. But in sort of other speeches and in other writings, and I think it's pretty clear that this is not just a lazy sort of retcon, but him really clarifying what had always been what he said, which is in some sense, he argues that originalists actually make the constitution more meaningfully alive, in the sense they actually still treat it as formally legally binding doctrine that is critically important instead of something that's like, well, it's kind of back there, but it's old. We've sort of figured out things that are smarter and better than that. So, in sort of other things, he and other originalists have suggested actually that originalism makes the text of the Constitution more alive than someone whose much more emphasis was on sort of political history development, doctrine, or even more so, you know, philosophy or something like that. So yeah, Scalia very quickly sort of repented of that kind of flippant verbal tick. But it's a it's a fun speech, but it is sort of inconsistent with it is sort of inconsistent with his broader understanding, an originalist broader understanding, which is in instead actually to make the constitution more alive, more binding, more something people care about. Whereas, again, if you look at a lot of those 50s, 60s, some you know, some of the Warren Court cases, some of the Burger cases, they really don't do very much in terms of the text, and they really don't do that much in terms of, you know, what are the ratifying conventions saying? Uh they some of them, it makes it easier as a con law professor when I'm editing those cases, because you can chop them down pretty fast. Whereas the more contemporary cases today, you know, even for example, uh students for fair admission, the affirmative action case a few years ago, it's hard to chop that down because it's so much really needy, deep historical documentation, especially from the so-called originalists. But there's a part where Justice Jackson decides to say, all right, well, let's do some originalism. Here's some evidence that I would cite that like looks originalist in response. And so those are those are much more, I would say, sophisticated and thoughtful treatments than again, even places where the uh I guess we'll talk about this when we look at the brown one in a little bit. The brown case doesn't really even try to do they just have like one like, eh, originalism is hard. Who cares? And like literally one line, they just move on. So the the cases are harder to edit, but they actually, I think one of the sort of our advantages that originalists would say is you can actually argue about historical documents, right? Here's you put your case out, here we'll put our case out, and a reader can sort of go through and compare the evidence versus here's what I think dignity looks like, here's what I think dignity looks like. It reads much more like a sophisticated, interesting Socratic seminar, but it's much harder to adjudicate that on a common ground.

SPEAKER_00: 17:09

I brought that up because I really used to like using that speech in AP government because I would talk about sound bites and media literacy and you know the value of understanding the person who's giving the speech as well as the entire speech, because the way that it was portrayed was that Scalia didn't care about the constitution, which is the complete opposite of the truth. So I appreciate you indulging me there.

SPEAKER_01: 17:33

See a similar thing actually that's just getting done with Jill Lapore's big book has basically come out and said, Originalists killed Article V, which if you read anything that originalists write, they they worship Article V almost idolatrously. But it was a similar sort of poll quote that was along those lines that's been sort of expanded out into a whole thing, which is just as you said, you sort of need the context. Uh in Scalia's case, he's making a crack because he knows his audience knows what his views are. So yeah, absolutely right.

SPEAKER_00: 18:06

It's it's very interesting. Okay. Thank you so much for this. I am really excited to start diving into Supreme Court cases, especially our first one, Marbury vs. Madison, which will be one of our next episodes. So thank you, Dr. Beinberg.