Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.
For example, the United States Supreme Court has decided such topics as the legality of slavery as in the Dred Scott decision, and desegregation as in the Brown v Board of Education decision, and abortion rights as in the Roe v Wade decision. As a result, how justices interpret the constitution, and the ways in which they approach this task has a political aspect. Terms describing types of judicial interpretation can be ambiguous; for example, the term judicial conservatism can vary in meaning depending on what is trying to be "conserved". One can look at judicial interpretation along a continuum from judicial restraint to judicial activism, with different viewpoints along the continuum.
Basis for judicial interpretation
In the United States, there are different ways to do judicial interpretation:
- Balancing happens when judges weigh one set of interests or rights against an opposing set, typically used to make rulings in First Amendment cases. For example, cases involving freedom of speech sometimes require justices to make a distinction between legally permissible speech and speech that can be restricted or banned for, say, reasons of safety, and the task then is for justices to balance these conflicting claims. The balancing approach was criticized by Supreme Court justice Felix Frankfurter who argued that the Constitution gives no guidance about how to weigh or measure divergent interests.
- Doctrinalism considers how various parts of the Constitution have been "shaped by the Court's own jurisprudence", according to Finn.
- Founders' Intent involves judges trying to gauge the intentions of the authors of the Constitution. Problems can arise when judges try to determine which particular Founders or Framers to consult, as well as trying to determine what they meant based on often sparse and incomplete documentation.
- Originalism involves judges trying to apply the "original" meanings of different constitutional provisions. To determine the original meaning, a constitutional provision is interpreted in its original context, i.e. the historical, literary, and political context of the framers. From that interpretation, the underlying principle is derived which is then applied to the contemporary situation. Former Supreme Court justice Antonin Scalia believed that the text of the constitution should mean the same thing today as it did when it had been written. A report in the Washington Post suggested that originalism was the "view that the Constitution should be interpreted in accordance with its original meaning — that is, the meaning it had at the time of its enactment." "Meaning" based on original principles.
- Prudentialism discourages judges from setting broad rules for possible future cases, and advises courts to play a limited role.
- Precedent is judges deciding a case by looking to the decision of a previous and similar case according to the legal principle of stare decisis, by finding a rule or principle in an earlier case to guide their judgment in a current case.
- Strict constructionism involves judges interpreting the text only as it was written; once a clear meaning has been established, there is no need for further analysis, based on this way, which advocates that judges should avoid drawing inferences from previous statutes or the constitution and instead focus on exactly what was written. For example, Justice Hugo Black argued that the First Amendment's wording in reference to certain civil rights that Congress shall make no law should mean exactly that: no law, no exceptions.
- Structuralism is a way judges use by searching for the meaning of a particular constitutional principle only by "reading it against the larger constitutional document or context," according to Finn. Judges try to understand how a particular ruling fits within the larger structure of the entire constitution.
- Textualism primarily interprets the law based on the ordinary meaning of the legal text.