Foundations and Interpretations of Constitutionalism

Study Tip: When analyzing a court case, identify which of these five methods the majority opinion uses. For example, if a justice cites 18th-century dictionaries, they are likely using Originalism or Textualism.

Case Studies in Conflict

The tension between these interpretive methods is most visible in landmark Supreme Court cases involving citizenship and reproductive rights.

Birthright Citizenship and the 14th Amendment

The 14th Amendment contains a critical clause regarding citizenship: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens...”. The interpretation of "jurisdiction" has been a central battleground. In United States v. Wong Kim Ark (1898), the Court established that children born in the U.S. to foreign nationals are citizens, following narrow exceptions from British common law.

More recently, in debates like Trump v. Barbara (2026), the Court saw a split between those who view the clause through the lens of established legal terms (the majority) and those, like Justice Alito, who argue citizenship is only conferred on those who owe "allegiance solely to this country".

The Debate Over Reproductive Rights

The conflict between Originalism and Aspirationalism is starkly illustrated in the debate over abortion rights. In the Dobbs decision, the Court used an originalist framework to argue that because a right to abortion was not recognized when the 14th Amendment was adopted, it does not exist under the Constitution.

Critics, including Justices Breyer, Sotomayor, and Kagan, argued that this approach is regressive. They noted that the "people" who ratified the amendment were primarily men who did not perceive women as equal citizens. They argued that tethering modern rights to the perspectives of 19th-century ratifiers effectively consigns women to "second-class citizenship".

Theories of Judicial Behavior

Why do justices rule the way they do? Scholars use several models to explain judicial decision-making.

• The Attitudinal Model: This theory suggests that judicial decisions are primarily driven by the justices' personal ideological and partisan leanings.
• The Strategic Model: This suggests that justices are not just ideologues but political actors who act strategically to achieve long-term institutional goals.
• The Legal Model: This assumes that justices are constrained by legal precedent, statutes, and established doctrine.
• Historical Institutionalism: This examines how long-standing institutional structures and historical patterns shape legal outcomes.

The Power of Judicial Review

One of the most significant questions in constitutionalism is whether the judiciary has the authority to strike down laws passed by the legislature. This is known as judicial review.

In the foundational case Marbury v. Madison, Chief Justice John Marshall established that "it is emphatically the province and duty of the Judicial Department to say what the law is". Marshall argued that because the Constitution is a written document intended to limit government power, it must be superior to ordinary legislative acts. If a law conflicts with the Constitution, the Court must follow the Constitution.

This power was further expanded in cases like Martin v. Hunter’s Lessee, which determined that the Supreme Court's appellate power extends to state courts to ensure a uniform national law, and McCulloch v. Maryland, which affirmed that the "Necessary and Proper" clause allows the federal government to exercise implied powers, such as creating a national bank.

Key Concept: Do not confuse Judicial Review with Judicial Supremacy. Judicial review is the power to interpret the law; judicial supremacy is the controversial idea that the Court's interpretation is the final, unchallengeable word on all constitutional matters.