Legal Theory Blog: Legal Theory Lexicon: Principles in Constitutional Theory

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