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The Modes of Constitutional Analysis:
Pragmatism (Part 5)
December 30, 2021
This Legal Sidebar Post is the fifth in a nine-part series that discusses certain methods or modes of
analysis that the Supreme Court has employed to determine the meaning of a provision within the
Constitution. (For additional background on this topic and citations to relevant sources, please see CRS
Report R45 129, Modes of Constitutional Interpretation)
In contrast to textualist and some originalist approaches to constitutional interpretation, which generally
focus on how the words of the Constitution are understood, pragmatist approaches consider the likely
practical consequences of particular interpretations of the Constitution. That is, pragmatist approaches
often involve the Court weighing or balancing the probable practical consequences of one interpretation
of the Constitution against other interpretations. One flavor of pragmatism weighs the future costs and
benefits of an interpretation to society or the political branches, selecting the interpretation that may lead
to the perceived best outcome. For example, in United States v. Leon, the majority held that the Fourth
Amendment does not necessarily require a court to exclude evidence obtained as a result of law
enforcement's good faith reliance on an improperly issued search warrant. Justice Byron White's majority
opinion in Leon took a pragmatic approach, determining that the [exclusionary] rule's purposes will only
rarely be served by applying it in the context of a good faith violation of the Fourth Amendment.
Notably, the Court determined that adoption of a broader exclusionary rule would result in significant
societal costs by undermining the ability of the criminal justice system to obtain convictions of guilty
defendants. Such costs, the Court held, outweighed the marginal or nonexistent benefits.
Using another type of pragmatist approach, a court might consider the extent to which the judiciary could
play a constructive role in deciding a question of constitutional law. According to this approach, a judge
might observe the passive virtues when confronted with constitutional issues in a case by adhering to
certain doctrines, including those under which a judge will avoid ruling on political or constitutional
questions. This may allow the Court to avoid becoming frequently embroiled in public controversies,
thereby preserving the Court's institutional capital for key cases and giving more space for the democratic
branches to address the issue and reach accommodations on questions about the Constitution's meaning.
The Supreme Court's decision in Baker v. Carr illustrates the application of this second type of
pragmatism. In that case, Justice William Brennan, writing for the majority, debated a dissenting Justice
Felix Frankfurter about whether the Court was the proper actor to review the constitutionality of a state's
apportionment of voters among legislative districts, or whether the plaintiffs should have sought remedies
Congressional Research Service
https://crsreports.congress.gov
LSB10679
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govefbi0001&div=1&collection=&method=preview&ext=.png&size=3)
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