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The Challenge of our Constitution                                                                                    

Posted at: Jul/12/2009 : Posted by: mel

Related Category: Watching America,

The Constitution of the United States is many things to many people. Fundamentally, it is the framework for the Government, defining the three branches and specifying the powers allocated to each branch along with their limitations. Besides defining the government of the United States, it also guarantees the basic rights of the people.

If you have not read the Constitution, you should. The Constitution is actually a relatively short document. By its very brevity it cannot and does not attempt to cover every eventuality. So we have a vast and complex realm of human interaction, and a governing document that is so short it cannot cover everything. This means that the constitution must be interpreted. The duty for interpretation of the Constitution therefore falls upon people, more specifically the judges of the Judicial Branch of our government.

The concept of constitutional interpretation is foreign in many countries, where their constitutions makes a reasonable effort to cover every eventuality. These constitutions are generally very rigid and little changing or adapting is allowed despite the slow but steady shifts in political views, popular opinion, technology, or government. The U.S. Constitution, however, has been termed by some to be a Living Constitution, in part because it grows and adapts to internal and external forces that evolve from one generation to the next. By others our Constitution is a very fixed set of words allowing for limited new interpretations.

What this means is that when a new legal situation arises, or even a new variation on an old legal situation, our U.S. Constitution is looked to for a pathway to render a new interpretation. Unfortunately, even here, we are challenged with differing ways that the Constitution can be interpreted. As there are a variety of ways to interpret the Constitution, people seldom agree on a single methodology for creating a new interpretation. Understanding the various divisions or philosophies for interpretation is important to understanding the nature of our government and its laws.

I have done more than a little reading here and want to be sure to give credit where it is due. My primary source was "On Reading the Constitution" by Lawrence Tribe and Michael Dorf. Additionally I garnered insights from "Constitutional Law: Cases and Commentary" by Daniel Hall.

Originalism, also called “Original Intent” is one of the fundamental forms of Constitution interpretation. The Originalist believes that the best way to interpret the Constitution is to determine how the “framers” intended the Constitution to be interpreted for the situation or point of law in question. They look to several sources to determine this intent. These sources primarily include the contemporary writing of the framers, newspaper articles of the day, the federalist Papers, and compiled notes from the Constitutional Convention. For an Originalist, considering the intent of the Constitutional framers is thought to be the purest way of interpreting the Constitution. The argument is actually very simple, who better to render an opinion than the folks that wrote it. There are several points that are used to back up this philosophy. First, the Constitution may have been the product of the Framers, but it was ratified by hundreds of delegates in 13 state conventions – with such a large group, shouldn’t their opinions hold even more weight? Second, the Framers were a diverse group, and many had issues with specific parts of the Constitution. Whose opinion should be used? Third, do the opinions of a small, homogeneous group from 200 years ago have the respect of the huge, diverse population of today? To a black woman, how much trust can be placed in the thoughts of a white slave owner who's been dead for generations?

The reality is that originalism is a very common interpretation method because it is easy to argue. When originalism fits a specific argument, finding a quote from a framer to support a modern position can be a powerful way to advance your point of view.

Another school of thought is Modernism or Instrumentalism. A modernist approach to Constitutional interpretation looks at the Constitution as if it were ratified today. What meaning would it have today, if written today. How does modern life affect the words of the Constitution? The main argument against originalism is that the Constitution becomes stale and irrelevant to modern life if only viewed through 18th century eyes. For obvious reasons the Instrumentalist are just about polar opposites to the originalist.

The Modernists would contend that the Constitution is deliberately vague in many areas for the express purpose of creating modern interpretations to supersede older ones as the Constitution ages and social challenges shift. This obviously becomes the embodiment of the Living Constitution concept: the Constitution is flexible and dynamic, changing slowly over time as the morals and beliefs of the population shift. The Modernists do not reject originalism, they recognize that there is value in a historical perspective; but argue that the contemporary needs of society outweigh a strict adherence to a potentially dated understanding.

Modernism from the view of an Originalists does a disservice to the Constitution and its authors. The feeling is that the people who debated and ultimately wrote the Constitution had a pure and valid vision for the nation, and that that same vision should be as valid now as it was then.

Another perspective on the Constitution is the Historical literalists. The Historical Literalist believe that the focus of Constitutional interpretation should be on the document itself. Contemporary writings of the times including the Federalist Papers, contemporary letters, and early Constitutional drafts should be ignored. For the Historical literalists the only thing one needs to interpret the Constitution is a literal reading of the words contained therein along with an expert knowledge in the 18th century meaning and usage of those words. This view even ignores the documented debates leading to the final draft as not being relevant to a valid interpretation.

For obvious reasons the historical literalist is considered by many writers on the subject as a subset of the “Originalist” perspective. A classic example used to demonstrate the literalist perspective would be as follows. The Historical Literalist would see the militia of the 2nd Amendment as referring to all able-bodied men from 17 to 45, just as in the late 18th century, and this interpretation would have an obvious impact on that person's reading of the 2nd Amendment.

Another interpretation camp is the Contemporary Literalist. Very similar to an historical literalist, a contemporary literalist looks only to the words of the Constitution for guidance, but the difference here is where the definition for the words are drawn from. For the Contemporary Literalist it is not about the meaning of the words when written, the contemporary literalist looks to modern dictionaries to determine the meaning of the words of the Constitution, ignoring precedent and legal dissertation, and relying solely on the definition of the words. Depending on the issue at hand, this perspective can closely parallels the originalist view, or mirror the modernist. As an example I will again look at the 2nd Amendment example. The contemporary literalist will view the militia described in the 2nd Amendment as being the modern National Guard, clearly the same words now have a significantly different meaning.

Finally, there is the Democratic interpretation to the Constitution. The Democratic interpretation is also referred to as the Normative Reinforcement. The Democratic proponents argue that the Constitution is not designed to be a set of specific rules, principles and guidelines, rather that it was designed to be a general principle. These general principles should be thought of as a basic skeleton on which contemporary vision would build upon. Decisions as to the meaning of the Constitution must look at the general feeling evoked by the Constitution, then use modern realism to flesh out the more specific aspects of the interpretation.

Sited as a foundation for the Democratic perspective, advocates point out that many phrases, such as "due process" and "equal protection" are intentionally vague, that the phrases are not defined in context. The foundation for interpretation must therefore come from that basic framework that the Framers provided, but that to fill in the gaps, modern society's current morals and values must be taken into consideration for a detailed understanding. Changes in the Constitution that stem from this kind of philosophy will end up with principles of the population at large, while ensuring that the framers still have a say in the underlying decision or ruling. This interpretation is seen to enhance democratic ideals and evolve with the general rules and ethos of contemporary society.

Now the question is “why talk about all these philosophies for interpreting the U.S. Constitution.” Fundamentally because it is important to our daily lives. Our President with oversight and approval of Congress appoints judges to the Supreme Court and our Federal District courts. Cases that are escalated to these high courts almost always involve a challenge to the current legal interpretation of a law. Despite the fact that various legislative bodies have created, voted on, and enacted laws; we still end out with laws that either contradict each other, or are perceived to fall outside the framework of the Constitution. These higher courts render decisions which are used as precedent for current cases. I have personally found it difficult to believe that there is one philosophical way to interpret the Constitution that works for all situations. As judges are reviewed for appointment to our high courts this is part of what they are interviewed for. Since judicial appointments are effectively “for life”, it is worthwhile for all of us to pay attention to the “judicial review process.”

Less the subtle differences there are really only two schools of conflicting thought regarding our Constitution. One fundamental approach is the “Living Document” where the words are re-evaluated based on current society and current definitions. The other approach is the “Original Intent” which focuses on what the framers meant when written. Pay attention, because thing we take for granted can change significantly as the makeup of the judges appointed to our highest courts shift in one direction or another and legal precedents shift in one direction or another. Remember that the body of law is not merely criminal, it pertains to rights of ownership, the ability of government to seize property, and the scope of government authority.

"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." --Thomas Jefferson to William Johnson, 1823.

"Common sense [is] the foundation of all authorities, of the laws themselves, and of their construction." --Thomas Jefferson: 1812.

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