A national government with divided power between the

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Last updated: February 16, 2019

A complex legal document that serves as the framework for the nation, the United States Constitution sets up the structure of the national government with divided power between the federal government and the states, protects and guarantees various individual liberties of citizens, and addresses the legal relationship between the federal government, state governments, and the people. Over the last two centuries, however, differing judicial interpretation of some of the Constitution’s provisions has sparked concerns with respect to the ultimate validity of these decisions.

Theories of constitutional interpretation assess the manner in which the document should be assessed and applied. While there is a national debate over the proper form of interpretation, there is general agreement that the text and structure of the Constitution, the Framers’ intentions, and prior precedents are appropriate guides to interpretation. Other sources of guided interpretation include the consequences of alternative or global interpretations and natural law, although these are not agreed upon as relevant guides.  In using these guidelines, constitutional interpreters fall generally into two broad groups: Originalists and Non Originalists. As judicial interpretation has a direct effect on the future of the country, it is essential to evaluate the various perspectives of interpretation. A primary concern with constitutional interpretation is seeking the objective meaning of the terms used in the text of the Constitution. The strict construction interpretation of the Constitution is commonly referred to as the theory of Originalism.

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Although they may examine the intent of the Founders when the text clashes or contradicts itself, Originalists take a more narrow meaning for the Constitution, often only examining the literal meaning of the text. This theory of objective “original meaning” emphasizes how a reasonable person in the time period in which the Constitution was proposed, ratified, and first implemented would have understood the text of the Constitution. Therefore, while the theory of original meaning does not dismiss the studying of documents directly related to the drafting and ratifying of the Constitution, other documents that would be referred to would be sources of legal interpretation that were studied at that time. A sub-category of Originalism is known as Textualism, which gives primary weight to the text and structure of the Constitution.

Thus, textualists are often skeptical of a judge’s ability to determine the collective intent of the Framers. Strict constructionism is when a judge interprets the text only as it is spoken and refrains from drawing inferences from previous statutes or the Constitution. As textualism concludes that there is no need for further analysis of the text once a clear meaning has been established, the theory has arguably the least flexibility in interpreting the Constitution.

One of the main proponents of textualism and originalism was the late Supreme Court Justice Antonin Scalia. In defending his view of constitutional interpretation in a speech before The Catholic University of America, Scalia states:The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. Therefore, the original meaning theory, in application, closely associates constitutional interpretation with the time period in which it was passed, instead of focusing on the possibility that the Framers “expected the doctrine to evolve.

” An example of the textualist theory in application can be found in Justice Hugo Black’s dissenting opinion in the 1965 landmark Supreme Court Case Griswold v. Connecticut. While the court ruled a Connecticut statute that prohibited any person from using “any drug, medicinal article or instrument for the purpose of preventing conception” unconstitutional on the grounds that it violated the “right to marital privacy,” Justice Black did not believe that a right was privacy was implicitly stated in the Ninth or Fourteenth Amendments.

Much to Justice Black’s dismay, the 7-2 decision in favor of Griswold and the right to privacy proves that text is often ambiguous. An additional concern with constitutional interpretation is determining whether the Framers of the Constitution intended a particular mode of interpretation. Many of the topics debated during the ratification process continue to probe discussion today.

The theory of interpreting the Constitution by assessing the intent behind its provisions is known as Intentionalism, a sub-category of Originalism. An intentionalist gives primary weight to the intentions of the Framers, members of proposing bodies, and ratifiers, thus intentionalism theory would include studying the writers of those men and their related work. Founders’ intent refers to when judges try to determine the intentions of the Constitution’s authors.One of the first advocation of intentionalism was Judge Robert Bork, a former judge on the United States Court of Appeals for the District of Columbia Circuit.

Judge Bork openly understood that it would be difficult at times to apply the original intent standard. For example, the use of an intentionalist theory would have to deal with the issue of generality. Judge Bork acknowledged that, since the Framers used terms for broad application, they could not have envisioned all of the situations in which a specific constitutional provision could be applied.

Thus, Judge Bork proposed that it is not the role of an intentionalist judge to conclude what the Framers’ opinion would be on a certain constitutional application. Rather, an intentionalist court would need to assert a core value that the framers intended to protect, and then provide the premise necessary to preserve the constitutional freedom at hand. In doing so, a judge can apply the constitutional provision to unanticipated facts without compromising the original intent of the provision at issue.

The theory of original intent, however, does have valid criticisms. Difficulties can emerge when judges try to decide which specific Framers to refer to, as well as when they attempt to discern what they meant based on often limited and incomplete documentation. The Constitution is also the result of intense debates that ended in compromise, which means that it would be close to impossible to establish a single collective intent of an entire group of individuals, all of whom had most likely had their own specific intentions and opinions.

While some may view Originalism as necessary to preserve the Constitution as a binding contract, the Framers at the Philadelphia Convention specified that they did not want their original intentions to control constitutional interpretation. Rather than focusing on particularities, the Framers instead focused on principles, such as the need for people in a democracy to engage in intense and unlimited discussion. Judges, therefore, must concentrate on underlying principles when applying constitutional provisions. The nation’s first debate over constitutional interpretation, in fact, revolved around central principles. Infuriated by the Federalist Administration of John Adams, states’ rights supporters argued in the late eighteenth century that original intent implied that the Constitution be narrowly interpreted “as a compact among separate sovereigns.

” The most extreme expressions of this sentiment were reflected in the 1798 Virginia and Kentucky Resolutions, which called for the power of ultimate constitutional interpretation to be reserved for the states. By dismissing this perspective, the Supreme Court more broadly interpreted the Constitution. In rejecting this outlook, a nationalistic Supreme Court construed the Constitution more broadly. It is important to note that neither side of this issue referred to the Framers’ intention to settle the debate.

James Madison, the leader of the Philadelphia Convention, himself stated on the floor of Congress in 1796 that “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.” Thus, Madison’s view of constitutional interpretation contradicts the narrow-minded views of late Justices Antonin Scalia and Hugo Black and other Originalists. The various, often transient intentions of the framers couple with Madison’s view refute the intentionalist perspective. Many people would also agree the Constitution’s text is vague and difficult to concern, questioning the credibility of textualists.

This ambiguity, however, does require individual interpretation to a certain extent in order to produce the result that will best promote the public good. In the words of Madison himself, the meaning of the Constitution cannot be found “in the general convention, which proposed, but in the state conventions, which accepted and ratified the Constitution.” The meaning and application of the Constitution should determined by the people, just as it was ratified in 1787. In order to do this, Originalism, on its own, is not a sufficient method of interpretation.

While Originalists look to the text and to the framers’ intentions as their main interpretive guides, Non Originalists look more to prior precedents, consequences of alternative interpretations, and sometimes natural law to direct their constitutional interpretations. Non Originalists, referred to as Living Constitutionalists, often initially look at the intent of the founders and then expand the interpretation of the text to comply with current standards. A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended.Although the Constitution can be amended, the amendment process is extremely difficult. 230 years since the document was adopted, society has evolved in ways that could have never been predicted in during the drafting days. Therefore, it is not realistic to expect the difficult amendment process to keep up with changes, and a changing Constitution is inevitable.While some may feel that a living Constitution is unstable and manipulable, our constitutional system has tapped into the ancient source of law, known as the common law, in order to escape those fears.

The common law is built out of precedents and traditions that accumulate over time and allow room for growth and change, but with certain limits and only in ways embedded in the past. This system enables a living Constitution that still protects fundamental principles from changing public opinions and judges’ individual views. According to the common law view, the authority of the law comes from the law’s evolutionary origins and its general acceptability to future generations. By the same reasoning, the content of the law is determined by the evolutionary process that produced it, not by examining a single text or the intentions of a single individual, such as the framers. Thus, if the living Constitution is a common law Constitution, it can invalidate its critics by proving that it is not endlessly manipulable. Living Constitutionalists fall into three subcategories.

The first, Pragmatists, give substantial weight to judicial precedent or the consequences of alternative interpretations, so as to occasionally favor a decision incorrect on originalist standards because it promotes the public good in some way. The second category consists of Living Constitutionalists and Pragmatists who claim that the Constitution has a dynamic meaning that can change. This idea is linked with views that contemporaneous society should be taken into consideration when interpreting constitutional provisions.

The last group gives primary weight to the social, political, and economic consequences of alternative constitutional interpretations. They believe that balance will result when a judge weigh one set of interests against in opposing set, which is typically used in First Amendment cases.A living constitutionalist, Justice Stephen Breyer’s opinion for the 9-0 majority of the 2014 Supreme Court case National Labor Relations Board v. Noel Canning discusses the way in which courts should interpret the Constitution. NLRB v.

Noel Canning held unconstitutional recess appointments made by the president when the Senate was still in pro forma session. In his opinion, Justice Breyer forcefully defends living constitutionalism and rejects fellow Justice Scalia’s originalist approach. Breyer made a bold assertion for interpreting the Constitution “in light of its text, purposes, and our whole experience.” Breyer’s progressive vision of the Constitution, as a result, will influence how future courts will interpret the constitutional provisions in the light of new controversies.

According to Breyer, the recess appointments power greatly emphasizes the strength of his approach. Contrary to some of the opponents of living constitutionalism, reading the Constitution broadly does not allow for justices to simply force their own values on society. Breyer establishes his knowledge of the core purposes of the Recess Appointment Clause in data and evidence. Breyer’s theory of constitutional interpretation does not dismiss the framers, yet he also attempts to determine how the recess appointment power has functioned and been understood since the drafting and ratification of the Constitution.

Constitutional law, Breyer proposes, should be enlightened by data just as much as by dictionaries. While Breyer’s theory still leaves some unanswered questions, it is significant that the court has prominently endorsed a principles-based approach to constitutional interpretation.In evaluating both perspectives of constitutional interpretation, it is evident that beliefs and values play a role in personal preference. As indicated by the justices who support a particular view, Originalist theory tends to be the view of conservatives, while Living Constitutionalist theory tends to coincide with liberal views. While this belief-based foundation of siding with a particular theory may result in some claiming their position is correct, the truth is that no theory of constitutional interpretation is without flaw. Just as there are critiques that Originalists cannot rely on the varied intent of the framers and the vagueness of the Constitution’s text, there are criticisms that a living Constitution allows too much room for judges to impose their own subjective values to manipulate the Constitution. In a sense, the intense theories of constitutional interpretation debate mirrors the current highly polarized political climate. The conclusion, then, is that neither theory is valid or invalid.

The Constitution itself is not based on a single theory, and the Framers did not share a single vision, but rather reached a complex compromise. The Framers were, after all, revolutionaries in their day, and we have the right to be revolutionaries too if the document they constructed no longer satisfies current issues. Indicated by the full range of existing constitutional law, different provisions of the Constitution, due to their differing amounts of generality, may not be receptive to the same methods of interpretation. Some methods of interpretation, such as reviewing documents relevant to the ratification era, may easily pertain to some cases. In other cases where the constitutional provision in question is less clear, the value of the same historical documents may be irrelevant.

Regardless, the constitutional interpretation debate is the result of a centuries old experiment in allowing our nation’s fundamental ideals and values concrete expression in a document. And this is something that should be celebrated.

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