Intentionalism in Constitutional Opinions

Abstract

This study examines the extent and ways in which two ideologically dis parate justices of the U.S. Supreme Court rely upon the intent of the fram ers of the Constitution in their opinions on constitutional questions. A content analysis of the complete opinions written by Justices Brennan and Rehnquist over a ten-year period reveals that not only do they not differ in their relative use of intentionalism but they also very rarely use original intent as the controlling argument in their opinions. We examine as well the justices' historiography. Finally, a systematic examination of all opin ions shows that the two justices consistently use intentionalism in support of quite different ideological outcomes. We discuss the quantitative and interpretive findings in light of debates over constitutional interpretation and explanations of judicial decision making.