Local Evidence in Constitutional Interpretation

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to raise an Eighth Amendment arbitrariness concern with geographic variation in local practice, where in a five-year period, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” In other rulings, judges seek to minimize constitutional interpretations that might disrupt local law and practice. As is done with respect to states, judges take into account whether local practices are outlying or common. Judges also look to local law and practice to inform the development of constitutional norms. This Article analyzes and defends reliance on local law and practice in constitutional interpretation — not to advocate localism or deference to local government — but as evidence in constitutional interpretation. Using local evidence in constitutional law is particularly important at a time in which empirical research on county-level data is providing a wealth of information that can better inform constitutional law

Impeachment as Congressional Constitutional Interpretation

Katyal argues that one can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. He illustrates the point with three examples--the roles of history, precedent, and moral philosophy--in discussing the case of Pres Bill Clinton\u27s impeachment

Local Evidence in Constitutional Interpretation

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to raise an Eighth Amendment arbitrariness concern with geographic variation in local practice, where in a five-year period, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” In other rulings, judges seek to minimize constitutional interpretations that might disrupt local law and practice. As is done with respect to states, judges take into account whether local practices are outlying or common. Judges also look to local law and practice to inform the development of constitutional norms. This Article analyzes and defends reliance on local law and practice in constitutional interpretation — not to advocate localism or deference to local government — but as evidence in constitutional interpretation. Using local evidence in constitutional law is particularly important at a time in which empirical research on county-level data is providing a wealth of information that can better inform constitutional law

Textualism and Originalism in Constitutional Interpretation

[Excerpt] In a 2016 lecture at the Case Western Reserve University School of Law, Judge Neil Gorsuch warmly praised former Supreme Court Justice Antonin Scalia\u27s approach to constitutional interpretation. Because President Trump has nominated him to serve on the Supreme Court, it is important to understand the approach Judge Gorsuch favors

Constitutional Interpretation

[We] must never forget, Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, that it is a constitution we are expounding. \u27 Marshall meant that the Constitution should be read as a document intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs. \u272 But he meant also that the construction placed upon the document must have regard for its great outlines and important objects. \u273 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a moral code. The conclusion that there are limits to the meaning that may be given the Constitution is not likely to arouse controversy. Yet, that conclusion masks an important ambiguity concerning the source and permanence of those limits. The boundaries of permissible constitutional interpretation, it might be argued, are set by the intentions of those who drafted and ratified the original document and the several amendments to it. Accommodation to change through interpretation is not wholly foreclosed on this view, for the Constitution often speaks in generalities, but (proponents of this view maintain) present judgment is securely bounded by the intentions of the framers. The opposing view is less easily stated. At the risk of initial oversimplification, the boundaries of permissible constitutional interpretation are, on that view, subject to continuous adjustment. The meaning of the Constitution is never fixed; rather, it changes over time to accommodate altered circumstances and evolving values. Only the former view, it seems apparent, is compatible with the recurrent claim that the Constitution itself stipulates the values that must be employed in making decisions. The latter view recognizes limits to the interpretation that may properly be placed upon the Constitution,4 but it does not treat those limits as embedded in the Constitution. It regards constitutional law not as an expression of values written into the Constitution by the framers, but as the product of a continuing process of valuation carried on by those to whom the task of constitutional interpretation has been entrusted

Constitutional Interpretation

[We] must never forget, Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, that it is a constitution we are expounding. \u27 Marshall meant that the Constitution should be read as a document intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs. \u272 But he meant also that the construction placed upon the document must have regard for its great outlines and important objects. \u273 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a moral code. The conclusion that there are limits to the meaning that may be given the Constitution is not likely to arouse controversy. Yet, that conclusion masks an important ambiguity concerning the source and permanence of those limits. The boundaries of permissible constitutional interpretation, it might be argued, are set by the intentions of those who drafted and ratified the original document and the several amendments to it. Accommodation to change through interpretation is not wholly foreclosed on this view, for the Constitution often speaks in generalities, but (proponents of this view maintain) present judgment is securely bounded by the intentions of the framers. The opposing view is less easily stated. At the risk of initial oversimplification, the boundaries of permissible constitutional interpretation are, on that view, subject to continuous adjustment. The meaning of the Constitution is never fixed; rather, it changes over time to accommodate altered circumstances and evolving values. Only the former view, it seems apparent, is compatible with the recurrent claim that the Constitution itself stipulates the values that must be employed in making decisions. The latter view recognizes limits to the interpretation that may properly be placed upon the Constitution,4 but it does not treat those limits as embedded in the Constitution. It regards constitutional law not as an expression of values written into the Constitution by the framers, but as the product of a continuing process of valuation carried on by those to whom the task of constitutional interpretation has been entrusted