Constitutional Topic: Constitutional Interpretation
The Constitutional Topics pages at the
USConstitution.net site are presented to delve deeper into topics than
can be provided on the Glossary Page or in the
FAQ pages.
This Topic Page concerns the various interpretations of the Constitution that
have evolved over time.
The Constitution is many things to many people. Undoubtedly, it is the frame
work for the Government of the United States of America, defining the three
branches and clearing delineating the powers of
the branches. It also undoubtedly grants certain power to the federal
government and grants others to the states; and it undoubtedly guarantees the
basic rights of the people.
The Constitution is short; it cannot and does not attempt to cover every
eventuality. Even when it seems it is clear, there can be conflicting rights,
conflicting spheres of power. When disputes arise, it comes time for people,
and most importantly judges of the Judicial Branch, to interpret the
Constitution. The concept of constitutional interpretation is foreign in some
countries, where the constitution makes a reasonable effort to cover every
eventuality. These constitutions are generally rigid and little changing,
adapting slowly to advances in political views, popular opinion, technology, and
changes in government. The U.S. Constitution, however, has been termed a Living
Constitution, in part because it grows and adapts to internal and external
pressures, changing from one era and generation to the next.
When a new situation arises, or even a new variation on an old situation, the
Constitution is often looked to for guidance. It is at this point that the
various interpretations of the Constitution come into play.
There is no one right way to interpret the Constitution, and people often do
not always stick to one interpretation. Below, then, are the major divisions in
interpretation; your own personal beliefs may fall into several of these
categories.
Note: the major sources for material for this section were “Constitutional
Law: Cases and Commentary” by Daniel Hall, and “On Reading the Constitution” by
Lawrence Tribe and Michael Dorf.
Originalism, or, Original Intent
Originalists think that the best way to interpret the Constitution is to
determine how the Framers intended the
Constitution to be interpreted. They look to several sources to determine this
intent, including the contemporary writings of the framers, newspaper articles,
the Federalist Papers, and the notes from the Constitutional Convention itself.
Originalists consider the original intent to be the most pure way of
interpreting the Constitution; the opinions of the Framers were, for the most
part, well documented. If there is an unclear turn of phrase in the
Constitution, who better to explain it than those who wrote it?
Opponents of originalism note several points. First, the Constitution may
have been the product of the Framers, but it was ratified by hundreds of
delegates in 13 state conventions – should not the opinions of these people hold
even more weight? Also, the Framers were a diverse group, and many had issues
with specific parts of the Constitution. Whose opinion should be used? Next, 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?
In truth, as with all of the following interpretations, most people use
originalism when it suits them. Finding a quote from a framer to support a
modern position can be a powerful way to advance your point of view.
Modernism/Instrumentalism
Those who most oppose the Originalist approach often consider themselves to
be modernists, or instrumentalists. 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. Additionally, we have more than 200 years of history and
legal precedent to look back on, and that we are modern individuals, with as
much difficulty in reasonably thinking like 18th century men as those 18th
century men would have had trouble thinking like us.
Modernists also contend that the Constitution is deliberately vague in many
areas, expressly to permit modern interpretations to override older ones as the
Constitution ages. It is this interpretation that best embodies the Living
Constitution concept: the Constitution is flexible and dynamic, changing slowly
over time as the morals and beliefs of the population shift. Modernists do not
reject originalism – they recognize that there is value in a historical
perspective; but the contemporary needs of society outweigh an adherence to a
potentially dangerously outdated angle of attack.
Originalists feel that modernism does a disservice to the Constitution, that
the people who wrote it had a pure and valid vision for the nation, and that
their vision should be able to sustain us through any Constitutional
question.
Literalism – historical
Historical literalists believe that the contemporary writings of the Framers
are not relevant to any interpretation of the Constitution. The only thing one
needs to interpret the Constitution is a literal reading of the words contained
therein, with an expert knowledge in the 18th century meaning of those words.
The debates leading to the final draft are not relevant, the Federalist Papers
are not relevant – only the words.
The historical literalist takes a similar look at the Constitution as an
originalist does, but the literalist has no interest in expanding beyond the
text for answers to questions. For example, an historical literalist will 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 will color that person’s reading of the 2nd Amendment.
Literalism – contemporary
Very similar to an historical literalist, a contemporary literalist looks
only to the words of the Constitution for guidance, but this literalist has no
interest in the historical meaning of the words. 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.
Just as the historical literalist view parallels the originalist view, but
much more narrow in focus, so too does the contemporary literalist mirror the
modernist; and again, the main difference is the literalist looks only to the
words of the Constitution for meaning. To expand on the 2nd Amendment example,
the contemporary literalist will view the militia as the modern National Guard,
and this will color that person’s views on the 2nd.
Democratic/normative reinforcement
Finally, the democratic interpretation is the last approach to interpretation.
Democratic interpretation is also known as normative or representation
reinforcement. Democratic proponents advocate that the Constitution is not
designed to be a set of specific principles and guidelines, but that it was
designed to be a general principle, 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 pad out the skeleton.
As evidence, democrats point out that many phrases, such as “due process”
and “equal protection” are deliberately vague, that the phrases are not defined
in context. The guidance for interpretation must come from that basic framework
that the Framers provided, but that to fill in the gaps, modern society’s
current morals and feelings must be taken into consideration. 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 the notion of republicanism.