The US Constitution declares itself to be “the supreme law of the land.” Unfortunately, the meaning of the constitutional text is not always clear. Consider the abortion case Roe v. Wade. How did the US Supreme Court conclude that the Constitution gives a woman an essentially unconstrained choice to have an abortion in the first trimester of her pregnancy but that it also allows the state to regulate or prohibit abortion as the pregnancy progresses?
Everyone—the president, state legislators, and private citizens–can have their own opinion on what the constitution means. But since the 1803 decision in Marbury v. Madison, the Supreme Court has had the last word on constitutional interpretation. How does the Court decide what the Constitution means?
Ultimately the Supreme Court is constrained by political realities. If the Court tried to direct Congress to spend money on highways or to force people to go to a Catholic church, the resulting uproar would drown out the words of the Court’s opinions.
The major struggle over theories of constitutional interpretation is between those judges and scholars who believe that the Constitution should be narrowly interpreted only according to the intent of the framers or the understanding of its provisions at the time of adoption and those who assert that we have to look beyond those intentions and understandings. The former theory, that the Constitution has a “changeless nature and meaning,” as Justice David Brewer wrote (South Carolina v. United States, 1905) is known as originalism or interpretivism; the latter is known as nonoriginalism and is sometimes described as the idea of a living Constitution.
The concept of originalism as a solid source of constitutional law is as attractive as the idea of a text with plain meaning, but nonoriginalist judges and scholars have identified problems with the concept. There is an initial problem of our ability to render a historical judgment about original intent or understanding. Reference to “the intention of the framers” suggests that there existed a definable group of framers and that we can determine their intentions with a high degree of certainty. But who are the framers?
The original Constitution was drafted, negotiated, and voted on in a convention composed of delegates from different states with different points of view and then ratified by the members of thirteen state legislatures and conventions. Whose intent are we to focus on: the drafters of the provision at issue, others who participated in the debate at the convention or in the Congress, or members of the ratifying legislatures?
The difficulties of ascertaining historical intention have led some originalists to shift focus from the intention of the framers to the general understanding of a constitutional provision at the time of its enactment, what Justice Scalia described as “the intent that a reasonable person would gather from the text of the law.” The search for original understanding, therefore, presumes that we can comprehend the framers’ world and apply that comprehension to our own world. But nonoriginalists point out the difficulty of achieving that comprehension.
What is the nature of the Constitution, why does it command obedience, and what is the role of the Court in interpreting it?
Originalism presumes that historical intent is a fact, like a physical artifact waiting to be unearthed, but it is often hard to dig up the truth about an event two hundred years in the past. When the authors and ratifiers of the First Amendment thought of freedom of speech and freedom of press, they could only have in mind some idea of freedom of speech and press—literally—because speaking and printing were the only forms of communication available. How do we translate that understanding to the regulation of, for example, readily accessible pornography on the Internet or pervasive commercial advertising on television?
In the end, the choice between originalism and nonoriginalism and among their many variations is a choice based on political theory: What is the nature of the Constitution, why does it command obedience, and what is the role of the Court in interpreting it? These are difficult questions to resolve, and history does not answer them for us. Indeed, constitutional historians argue that the framers themselves were not originalists. Lawyers and statesmen in the late eighteenth century did not hold a conception of fundamental law as the positive enactment of a legislative body, such as a constitutional convention, whose understanding in enacting the law should guide its interpretation.
Does this leave constitutional interpretation at the point where we simply say that it’s all up to the justices’ points of view and that they can read into the Constitution their own political views and personal preferences? Yes and no. “Yes,” in the sense that no plain meaning of the text, historical evidence, or objective principles determine their decisions. And “no,” in the sense that a justice is not completely free to reach any decision on any basis he or she wants.
This brings us back to the idea that constitutional law is as much a language and a process as a body of rules and rights. The words of the Constitution and the ways it has been understood, interpreted, and argued about inside and outside the courts provide the language the justices must use in interpreting and applying the Constitution.
When it is taken seriously and pursued in good faith, constitutional interpretation becomes a model of principled debate on important social issues. It can be conducted at one level removed from immediate political controversies, making it easier to consider consequences, construct principles, and analogize to other situations—the kinds of things the legal process is best at.
Too often, of course, constitutional debate is not carried on at this level. Instead, it becomes one more vehicle for the expression of preconceived beliefs. Because the Constitution is subject to varying interpretations, justices and others can select the interpretation that best fits the conclusion they wish to reach without engaging in a serious process of interpretation.
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