Public Opinion: Should It Interpret The Constitution?

The interpretation of the Constitution is a complex and multifaceted process that involves examining the text's original intent and meaning, as well as considering external factors such as public opinion and social attitudes. While some scholars advocate for an originalist interpretation, focusing on the intent of the drafters and the text's original public meaning, others argue for a living constitutionalist approach, where the meaning of the text evolves with changing social attitudes and contexts. The interpretation styles of justices also play a significant role, with progressive interpretations favoring individuals and originalist interpretations often supporting the government. The influence of public opinion on constitutional interpretation is evident, with a recent shift in public attitude towards interpreting the Constitution for current times rather than its original meaning. This evolution in perspective highlights the dynamic nature of constitutional interpretation and its interplay with societal values.

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The role of public opinion in judicial decision-making

The interpretation of the Constitution is a complex and nuanced process, influenced by various factors, including the original intent and public meaning of the text, judicial precedent, and the ideological preferences of the justices. While the text of the Constitution serves as the primary source of interpretation, public opinion also plays a role, albeit indirectly and subject to other constraints.

Public opinion can shape the interpretation of the Constitution by reflecting changing social attitudes and values over time. Living constitutionalists believe that the meaning of the Constitution evolves as society's beliefs and perspectives change. For example, the Supreme Court's decision in Brown v. Board of Education (1954) ended racial segregation in public schools, reflecting a shift in public opinion against segregation. In this way, public opinion can influence the Court's interpretation of the Constitution to address modern societal issues.

The ideological preferences and interpretive styles of individual justices also come into play. While some justices, like Antonin Scalia, adhere to a strict textualist approach, focusing solely on the text of the Constitution, others, like Ruth Bader Ginsburg, advocate for a more adaptive interpretation that considers the changing context of the United States. These interpretive styles are influenced by the justices' personal beliefs and attitudes, which may be shaped by their interactions with colleagues, other branches of government, and prevailing public sentiment.

Additionally, the strategic model of judicial decision-making acknowledges that justices' preferences are constrained by precedent, judicial review, and adherence to constitutional provisions. They must also consider the potential impact of their decisions on public opinion and the legitimacy of the Court. As a result, justices may compromise on certain aspects, such as opinion content, to achieve their desired outcomes while navigating the complex web of institutional relationships and public expectations.

While public opinion does not directly dictate the interpretation of the Constitution, it can exert indirect influence. Justices must balance their own ideological preferences with the constraints imposed by legal principles, institutional relationships, and the evolving nature of societal values reflected in public opinion. Ultimately, the interpretation of the Constitution is a dynamic process that considers various factors, with public opinion being one of several influences that shape judicial decision-making.

Originalism vs. Living Constitutionalism

The interpretation of the Constitution is a complex and contentious issue that has been debated for centuries. Two opposing schools of thought are Originalism and Living Constitutionalism, each with its own set of arguments and justifications.

Originalism holds that the meaning of the constitutional text is fixed and unchanging, and it should be interpreted as it was originally understood at the time of its enactment. Originalists argue that the Constitution's meaning is static and should bind constitutional actors, including judges, legislators, and executives. This interpretation promotes stability, predictability, and consistency in the law, ensuring that the principles and values upon which the nation was founded remain intact.

On the other hand, Living Constitutionalism takes the view that the Constitution is a living, breathing document that must evolve and adapt to changing circumstances and societal values. Living Constitutionalists argue that the Constitution should be interpreted in a way that addresses modern issues and reflects current social, political, and ethical norms. This approach allows for flexibility and ensures that the law remains relevant and responsive to the needs of a dynamic society.

The debate between Originalism and Living Constitutionalism centres around the question of whether the Constitution should be interpreted rigidly or dynamically. Originalists prioritize the preservation of the founding fathers' original intent and the stability of the law, while Living Constitutionalists emphasize the need for the law to adapt to the evolving nature of society.

While Originalists may argue that a static interpretation of the Constitution provides a solid foundation for legal principles and ensures that the document's original meaning is upheld, Living Constitutionalists counter that a dynamic interpretation is necessary to address contemporary issues and ensure the document's relevance in a changing world. For example, issues such as privacy in the digital age and the application of the Fourth Amendment to new technologies are challenges that Living Constitutionalists argue require a flexible and evolving interpretation of the Constitution.

In conclusion, the debate between Originalism and Living Constitutionalism is a fundamental disagreement about the nature and purpose of the Constitution. While Originalists advocate for a strict interpretation of the document's original meaning, Living Constitutionalists believe that the Constitution should be interpreted in a way that adapts to the changing needs and values of society. This debate has significant implications for how the Constitution is understood and applied in practice, shaping the interpretation of laws and the resolution of modern legal issues.

The influence of ideological preferences on interpretation

The interpretation of the Constitution is influenced by the ideological preferences of justices, who have their own unique ways of interpreting it. For instance, the conservative Supreme Court Justice Antonin Scalia, a textualist, believed that only the text of the relevant provision should be considered when applying the Constitution to a case. Conversely, Justice Ruth Bader Ginsburg, Scalia's ideological opposite, argued for interpretations that adapt to a changing United States. Ginsburg's opinions were not solely based on her ideological preferences, but were supported by detailed legal reasoning.

The interpretation styles of justices can be broadly categorized into progressive and originalist approaches. Progressive interpretation styles favour interpretations that protect individual rights, while originalist interpretations tend to favour the government. Originalism, a theory of interpreting legal texts, asserts that the original public meaning of the Constitution at the time it became law should be applied. Originalists believe that the Fourteenth Amendment always forbade racial segregation, contrary to the Supreme Court's decision in Plessy v. Ferguson, which was later overturned in Brown v. Board of Education.

Living Constitutionalists, on the other hand, believe that the meaning of the Constitution evolves over time as social attitudes change. They argue that racial segregation was once constitutional due to public opinion, but it became unconstitutional following the Supreme Court's decision in Brown v. Board of Education. This decision, in their view, improved the Constitution.

Public opinion plays a role in shaping constitutional interpretation, with a majority of Americans (55%) believing that the Supreme Court should base its rulings on the Constitution's current meaning. This view is more prevalent among younger Americans, with 64% of those under 50 agreeing. However, there are ideological differences, as about three-quarters of conservative Republicans (77%) favour interpreting the Constitution based on its original meaning.

Justices' preferences are influenced by various factors, including public opinion and interest groups, and they are constrained by precedent, judicial review, and adherence to constitutional provisions. The strategic model of judicial decision-making recognizes that justices have their own preferences but must also compromise and navigate interdependence with colleagues and other branches of government.

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The impact of external constraints on justices' preferences

Public opinion plays a significant role in influencing judicial preferences. For instance, the concept of "private attitudes become public law" (Pritchett 1941) highlights how justices' attitudes and the law are interconnected. Justices may be constrained by public sentiment in their interpretations, as seen in the shift towards interpreting the Constitution for current times. A majority of Americans (55%) believe that the Supreme Court should base its rulings on the Constitution's meaning in current times, reflecting a change in public opinion. This perspective is more prevalent among younger Americans and Democrats, indicating a divide along generational and partisan lines.

Interest groups also exert influence as an external constraint. These groups advocate for specific interpretations of the Constitution that align with their interests and values. While justices may not directly adopt these interpretations, the pressure from interest groups can impact their decision-making process and shape their preferences.

Additionally, the relationship between justices and their colleagues and other branches of government comes into play. The interdependence between justices and their peers can lead to compromises in opinion content to achieve a desired outcome in a case. This dynamic influences the expression of individual justices' preferences and contributes to the overall decision-making process.

It is worth noting that while external constraints play a role, they do not solely dictate justices' preferences. Interpretive styles, such as originalism or living constitutionalism, also guide justices in their interpretation of the Constitution. These interpretive styles are often considered during the nomination and confirmation process, providing insight into how a justice may approach constitutional interpretation.

In conclusion, external constraints, such as public opinion, interest groups, and interbranch relations, have a notable impact on justices' preferences. While not the only factor, they contribute to the complex dynamics of constitutional interpretation and judicial decision-making.

The use of pragmatist approaches in constitutional interpretation

While there is no consensus on the proper sources of the Constitution's meaning, several key methods of constitutional interpretation have guided the Justices in their decision-making. Pragmatist approaches to constitutional interpretation often involve the Court weighing or balancing the probable practical consequences of one interpretation.

One type of pragmatist approach weighs the future costs and benefits of an interpretation to society or the political branches, selecting the interpretation that may lead to the perceived best outcome. Another type of pragmatist approach involves the court considering the extent to which the judiciary could play a constructive role in deciding a question of constitutional law. This approach argues that certain moral concepts or ideals underlie some terms in the text of the Constitution (e.g. "equal protection" or "due process of law") and that these concepts should inform judges' interpretations of the law.

The pragmatist approach to constitutional interpretation is often contrasted with textualist and originalist approaches. Textualist approaches focus solely on the text of the document, while originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of its founding. Originalists generally agree that the Constitution's text had an "objectively identifiable" or public meaning at the time of its founding that has not changed over time. While the Court may be shifting towards textualism and originalism, these approaches may prove unworkable in practice, pushing the Court back towards pragmatism and other traditional approaches.

The interpretive styles of justices are often mentioned during the nomination and confirmation process, especially for nominations to the US Supreme Court. While justices have their ideological preferences, they also have their own unique ways of interpreting the Constitution. For example, the late conservative Supreme Court Justice Antonin Scalia was a textualist, while his jurisprudential and ideological opposite, the late Justice Ruth Bader Ginsburg, argued that interpretations of the Constitution should adapt to a changing United States.

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