Simone Lawson
In their book *On Reading the Constitution*, Laurence H. Tribe and Michael C. Dorf explore how the American Constitution should be interpreted in the modern day. They argue that the Constitution's open-ended phrases, such as liberty and equal protection of the laws, invite readers to reflect their own agendas and interpretations. Tribe and Dorf critique conservative interpretations of the Constitution and emphasize that constitutional interpretation involves substantive choices. They assert that the Constitution was meant to be a flexible guide for future generations, reflecting the evolving nature of American society.
| Characteristics | Values |
|---|---|
| Authors | Laurence H. Tribe and Michael C. Dorf |
| Purpose | To investigate the intended interpretation of the Constitution |
| Tone | Provocative, well-argued, articulate, illuminating |
| Key points | The wording of the Constitution is vague, the Constitution was meant to serve as a guide for future generations, the Constitution cannot be what its interpreters wish it to be, the Constitution speaks in general terms of "liberty" and "property" and the "privileges and immunities" of citizens |
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What You'll Learn
The constitution's open-ended nature
The Constitution of the United States is a written document that sets out the fundamental rules by which American society is governed. However, the wording of the Constitution is vague, and open to interpretation. Laurence H. Tribe and Michael C. Dorf, in their book *On Reading the Constitution*, explore how the fundamental charter of American government should be construed. They argue that the Constitution speaks in open-ended phrases such as "liberty", "property", the "privileges and immunities" of citizens, and the "equal protection of the laws". These phrases seem to invite readers to reflect their own visions and agendas onto them.
Tribe and Dorf recognise that the Constitution cannot be merely what its interpreters wish it to be. They draw on literary and mathematical analogies to explore how the Constitution should be interpreted in the modern day. They do not claim to have a definitive theory of interpretation, but their book offers solid critiques of conservative interpretations of the Constitution. They quote Rhenquist from a Texas Law Review article in 1976: "The framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the increasingly changing environment".
Tribe and Dorf also emphasise the importance of caution and humility in interpreting the Constitution. They argue that the meaning of words can change over time, and that interpreters must be wary of this. For example, the word "awful" once meant "full of awe". This evolution of language can impact the interpretation of the Constitution.
The book by Tribe and Dorf is a well-argued and clearly written contribution to the discussion surrounding constitutional interpretation. It is described as "energetic and highly illuminating", reminding readers that constitutional interpretation involves substantive choices that are not simply a matter of making things up. It is a valuable resource for those seeking to understand how the Constitution should be construed in the modern day.
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Conservative interpretation
In "How (Not) to Read the Constitution", Laurence H. Tribe and Michael C. Dorf explore how the American Constitution should be interpreted in the modern day. They argue that the Constitution's open-ended phrases, such as "liberty" and "equal protection of the laws", invite interpretation and reflection of personal agendas and visions.
Tribe and Dorf critique conservative interpretations of the Constitution, highlighting the confusions in the conservative camp regarding constitutional specificity. They quote Rhenquist from a 1976 Texas Law Review article, acknowledging that the framers of the Constitution used general language, leaving room for interpretation and application to changing environments. This pliant construction of the Constitution has resulted in a shift in the meaning of words over time, impacting the understanding of the document as a whole.
The authors emphasize that the Constitution is not the result of a single perspective or intent but a combination of many, including additional sources like the Federalist Papers. This complexity makes relying solely on textual interpretation challenging. They further remind readers that assuming liberals are always activists and conservatives are never, or that protections of liberty come from a single ideological camp, is an oversimplification.
Tribe and Dorf's work contributes to the dialogue on constitutional interpretation, reminding readers that interpretation involves substantive choices and is not a matter of simply filling in the blanks of the vague language used in the Constitution. Their book provides a critical analysis of conservative interpretations and encourages readers to approach the Constitution with caution and humility, recognizing the impact of interpretation on the fundamental charter of American government.
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The role of the interpreter
In their book *On Reading the Constitution*, Laurence H. Tribe and Michael C. Dorf explore the role of the interpreter in understanding the United States Constitution. They argue that the Constitution's open-ended phrases, such as "liberty," "property," and the "equal protection of the laws," invite readers to reflect their own visions and agendas onto the text. This recognition serves as a crucial starting point for their exploration of how the Constitution should be interpreted in contemporary times.
Tribe and Dorf emphasize that the interpretation of the Constitution is not a matter of simply making things up or imposing one's wishes onto the document. Instead, they acknowledge the substantive choices involved in constitutional interpretation and the primitive state of our current understanding of this process. Their work contributes to a growing body of literature that seeks to justify, preserve, and extend the work of the Warren Court.
The authors critique conservative interpretations of the Constitution, drawing attention to confusions within this ideological camp regarding constitutional specificity. They quote Rhenquist from a 1976 Texas Law Review article, agreeing that the framers of the Constitution intentionally used general language, leaving it to future generations to apply this language to a changing society. This pliant construction of the Constitution, however, also carries the risk of interpretations that deviate from the framers' original intent.
Tribe and Dorf explicitly state that they do not offer a definitive liberal theory of constitutional interpretation. Nevertheless, their book provides solid critiques and starting points for further investigation. They encourage readers to consider alternative perspectives, such as Antonin Scalia's "A Matter of Interpretation," which includes a rebuttal by Tribe and a philosophical criticism of Scalia's "textualist" theory.
In summary, the role of the interpreter, according to Tribe and Dorf, involves navigating the complex task of interpreting the Constitution's general language in a way that is relevant to modern times while also respecting the framers' intentions. This interpretation should not be a mere projection of the interpreter's wishes or political beliefs but a thoughtful engagement with the text that acknowledges the need for substantive choices and a cautious, humble approach.
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The constitution's application to modern society
In their book *On Reading the Constitution*, Laurence H. Tribe and Michael C. Dorf explore how the US Constitution should be interpreted in the modern era. They argue that the Constitution's wording is vague and open to interpretation, with its use of broad terms like "liberty" and "equal protection of the laws". This vagueness, they suggest, was intentional, allowing for flexibility and adaptability to changing societal needs. However, they also acknowledge that this ambiguity has led to challenges in interpretation, with readers projecting their own agendas and beliefs onto the document.
The book offers a critical perspective on conservative interpretations of the Constitution, highlighting the challenges of determining the original intent of the framers. It emphasizes the dynamic nature of language, noting how the meaning of words can evolve over time, further complicating interpretation. While Tribe and Dorf do not propose a definitive liberal theory of interpretation, they provide valuable insights into the complexities of constitutional interpretation and the need for caution and humility in this process.
One example of the Constitution's adaptability is its interpretation regarding slavery. Despite the original document's implicit acceptance of slavery, the Constitution was later used as a tool to abolish slavery without altering the text itself. This demonstrates how the Constitution can be applied and interpreted in ways that reflect modern societal values and norms, even if they differ significantly from those of the framers.
Tribe and Dorf's work also highlights the challenges of applying the Constitution to modern governance. They argue that the Constitution's design sometimes hinders the government's ability to respond effectively and efficiently to contemporary issues. For instance, the provisions for voting eligibility and the structure of government outlined in the Constitution may not align with the needs of a complex and rapidly changing society.
In conclusion, Tribe and Dorf's analysis of the Constitution emphasizes the importance of interpreting the document in a way that is relevant to modern society. While the Constitution's wording is vague and open to interpretation, it provides a foundation for governance that can be adapted to reflect changing societal needs. Their work underscores the dynamic nature of constitutional interpretation and the ongoing dialogue between the past and the present in shaping the future of American governance.
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The constitution's effectiveness
The Constitution is a document that sets out the fundamental rules by which a society is governed. It is meant to serve as a guide for future generations and reflect a continually changing society. However, the effectiveness of the Constitution in achieving this goal has been questioned. Laurence H. Tribe and Michael C. Dorf, in their book "On Reading the Constitution", discuss how constitutional interpretation involves substantive choices and is not simply a matter of making things up. They argue that the Constitution should not be merely what its interpreters wish it to be and that it needs to be construed in a way that is applicable to modern times.
One example of the Constitution's lack of specificity is in Amendment 8, which prohibits cruel and unusual punishments. The Constitution does not define what constitutes an "unusual punishment", and this has led to differing interpretations based on individual beliefs and moral preferences. For instance, the death penalty is still legal in many states, which contradicts the religious beliefs of those who follow the 10 commandments.
In addition, the Constitution has been criticised for producing an ineffective government rather than one that can respond to issues promptly. For example, the document's provisions towards voting eligibility and the issues of slavery, the 1906 San Francisco Earthquake, and the civil rights struggle have demonstrated how the Constitution can hinder the expediency of governmental actions.
Despite these criticisms, the Constitution has also been praised for its protection of civil liberties. For instance, Frederick Douglass noted that abolishing slavery would not require altering a single sentence or syllable of the Constitution. This demonstrates how the document can adapt to changing societal norms and values without needing to be amended.
In conclusion, the effectiveness of the Constitution is a complex and ongoing debate. While it has been criticised for its lack of specificity and adaptability to modern times, it has also been praised for its protection of civil liberties and ability to reflect a changing society. The interpretation of the Constitution remains a primitive and controversial task, with no one theory or ideology taking precedence.
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Frequently asked questions
The authors argue that the US Constitution is open to interpretation, with its vague, open-ended phrases and general language. They claim that the Constitution was meant to be a guide for future generations and that its interpretation should reflect the changing nature of American society.
Their work aims to provoke thought and discussion around constitutional interpretation, acknowledging that it involves substantive choices. They do not offer a definitive theory but critique conservative interpretations.
They refer to "Amendment 8- Cruel and Unusual Punishment", demonstrating that the Constitution is not always specific. This ambiguity allows for varying interpretations based on individual beliefs and values.
By exploring how the Constitution should be construed in modern times, they encourage readers to form their own interpretations while recognising the limitations of their own work. They draw on literary and mathematical analogies to guide readers towards a more adaptable understanding of the Constitution.
Their work is generally well-received, described as "energetic", "provocative", and "well-argued". Cass Sunstein of the New Republic commends their contribution to justifying and preserving the work of the Warren Court. However, some reviewers find it challenging to derive a definitive theory from their work.
