Simone Lawson
The interpretation of the constitution is a highly contested topic, with various theories and beliefs surrounding how it should be interpreted. Originalism, for example, is a theory that asserts the constitutional text should be given its original public meaning from when it became law. This is contrasted with living constitutionalism, where the meaning of the text is believed to change over time as social attitudes evolve. The debate also revolves around whether the constitution should be interpreted as a flexible, living document or whether it should be interpreted literally, with some arguing that the constitution should be interpreted organically and with a broad and liberal spirit. The role of the Supreme Court and judges in interpreting the constitution is also a key aspect of the discussion, with some arguing that the constitution means what the Supreme Court says it means, while others advocate for specific rules and theories of interpretation to guide judges.
| Characteristics | Values |
|---|---|
| Interpreted as a living document | Repulsed |
| Originalism | Objective legal construct |
| Living Constitutionalism | Social attitudes change |
| Original expected applications | Subjective intentions |
| Pragmatic constitutionalism | Improve things within certain bounds |
| Common law constitutionalism | Judges "never" admit that constitutional text should be "ignored" |
| Original meaning constitutionalism | Text and history drive constitutional interpretation |
| Barnett's rule of construction | Strongly protecting the rights of the individual against majority rule |
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What You'll Learn
Originalism vs. Living Constitutionalism
The interpretation of the Constitution has been a topic of constant discussion. There are two primary conflicting views on how the Constitution should be interpreted: Originalism and Living Constitutionalism.
Originalists argue that the meaning of the constitutional text is fixed and should bind constitutional actors. They believe that the Constitution should not be changed based on political whim but only when there is a broad societal agreement that an improvement or change is needed. Originalists also believe that the Constitution already provides the tools, resources, and principles to afford full equality and opportunity for everyone.
On the other hand, Living Constitutionalists argue that constitutional law can and should evolve in response to changing circumstances and values. They believe that the Constitution should be interpreted as a living document that adapts to the challenges faced by society. Living Constitutionalists may advocate for reforms in the process of appointing justices to ensure they are committed to upholding human rights and equality.
Harvard Law Professor Alan Jenkins acknowledges that the original Constitution was both "brilliant and highly flawed." He highlights how it offered Americans the promise of freedom while excluding marginalized groups such as Black and Indigenous people, and women. Jenkins suggests that while the Constitution has endured and evolved, it could benefit from a more explicit articulation of fundamental economic rights.
The debate between Originalism and Living Constitutionalism centers around the question of whether the Constitution should remain static or dynamically adapt to societal changes. While Originalists prioritize the fixed meaning of the text, Living Constitutionalists emphasize the need for the Constitution to respond to evolving circumstances and values.
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The role of the Supreme Court
There are various theories and approaches to interpreting the Constitution, including originalism and living constitutionalism. Originalists believe that the Constitution should be interpreted based on its original public meaning at the time it became law. They argue that the original meaning can be discerned from dictionaries, legal documents, and the historical context surrounding its creation. On the other hand, living constitutionalists argue that the meaning of the Constitution evolves as social attitudes change. They believe that the Supreme Court can change and improve the Constitution through its decisions, as seen in the Brown v. Board of Education case, which ended racial segregation.
The appointment of justices to the Supreme Court is a critical aspect of its role in interpreting the Constitution. Presidents have been known to appoint justices based on their restrictive interpretation of the Constitution, which can act as a barrier to ensuring equal justice and human rights. This has led to discussions about potential reforms to the appointment process, with some arguing for the appointment of justices committed to upholding human rights and equality.
The Supreme Court's interpretation of the Constitution is not without criticism. Some argue that the Court's interpretation should not be the final word, and that the original meaning of the text alone cannot resolve most contemporary constitutional questions. Judges and legal theorists have proposed various approaches to interpretation, such as pragmatic constitutionalism and common-law constitutionalism, which consider current policy concerns and prior cases.
Ultimately, the Supreme Court plays a pivotal role in interpreting the Constitution and shaping the country's laws and policies. While there are differing views on how the Constitution should be interpreted, the Court's decisions carry significant weight and have the power to bring about change, as demonstrated by its impact on racial segregation and voting rights.
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The original meaning of the text
The interpretation of the constitution has been a topic of constant discussion. Originalism is a theory of interpretation that believes that the constitutional text should be given the original public meaning that it had when it became law. Originalists believe that the original meaning of the text can be discerned from dictionaries, grammar books, and other legal documents. It can also be inferred from the background legal events and public debates that led to a constitutional provision. Originalism is often contrasted with Living Constitutionalism, which asserts that the meaning of the text changes over time as social attitudes change.
Originalism is grounded in the two-century-long movement toward constitutionalism, which led to the creation of the US Constitution and its institutions of the national government. Originalists believe that the Fourteenth Amendment always forbade racial segregation, from its adoption in 1868, contrary to the Supreme Court's decision in Plessy v. Ferguson, which upheld segregation. Originalism is not just a theory of what to do when the original meaning runs out, but rather a feature that allows for the flexibility needed to keep up with changing times.
However, critics argue that the original meaning of the text by itself cannot resolve most contemporary litigated questions of constitutional law. Judges must then decide how to act when confronted with such cases. While some judges focus on current policy concerns and prior cases, others argue that judges should "construct" constitutional meaning by identifying and applying background rules consistent with their best account of the text and history of the Constitution.
The interpretation of the constitution is not limited to originalism or living constitutionalism. Other theories, such as pragmatic constitutionalism and common-law constitutionalism, offer different perspectives on how to interpret the constitution. Ultimately, the interpretation of the constitution is a complex and ongoing debate, with various theories and approaches influencing how we understand and apply this foundational document.
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The impact of political will
Political will can have a significant impact on the interpretation of a constitution. The interpretation of a constitution is a complex and often highly contested issue, and political ideologies can shape how different actors interpret and implement constitutional provisions.
One example of this is the debate between originalism and living constitutionalism. Originalists believe that the constitution should be interpreted according to its original public meaning at the time it became law. They argue that the meaning of the text is objective and independent of the intentions of those who wrote it. In contrast, living constitutionalists believe that the meaning of the constitution changes over time as social attitudes evolve. They argue that the constitution must be interpreted flexibly to adapt to societal changes and improve over time.
The political will of those in power can influence which interpretation theory is favoured. For example, those with more conservative ideologies may align with originalism, as it emphasizes the importance of tradition and the original intent of the constitution's framers. On the other hand, those with more progressive or liberal ideologies may prefer living constitutionalism, as it allows for greater adaptability and the potential to address contemporary issues that the original framers may not have anticipated.
Political will can also impact the selection of constitutional interpreters, such as judges, and influence the interpretation and implementation of constitutional provisions. In a democratic system, the majority typically gets to select its leaders, and these leaders may appoint or influence the appointment of constitutional interpreters. For example, in the United States, the President appoints Supreme Court justices, who play a crucial role in interpreting the Constitution. The political will of the President can, therefore, indirectly shape how the Constitution is interpreted over time.
Additionally, political movements aiming to bring about significant change may need to win multiple elections to replace a majority of the Supreme Court or other constitutional interpreters. This dynamic ensures that constitutional interpretation is not subject to abrupt shifts with each election but rather reflects a sustained political will over several electoral cycles.
Furthermore, political will can influence the interpretation of constitutional provisions related to the powers of rulers or leaders. Interpretations that allow for absolute power or arbitrary decision-making can lead to tyranny. Thus, political leaders must interpret and exercise their powers within the constraints of the constitution and with respect for basic human rights.
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Equality and human rights
The interpretation of a constitution is essential for ensuring equality and human rights. For instance, the Equal Protection Clause in the United States Constitution, which states that no state shall deny any person within its jurisdiction equal protection under the law, has been interpreted to address racial discrimination and segregation. The interpretation of this clause has evolved to include preventing the federal government from discriminating, ensuring equal rights for all citizens, and tackling issues like unequal pay, workplace harassment, and discrimination against LGBTQIA+ individuals.
The interpretation of the constitution can also impact the rights of specific groups, such as people with disabilities. While the Constitution recognizes broad rights of education, habilitation, accessibility, and employment opportunity for people with disabilities, the interpretation and implementation of these rights through legislation and judicial decisions are crucial for ensuring equal access and opportunities.
In some cases, the interpretation of the constitution may fall short of guaranteeing equality and human rights. For example, despite the Fourteenth Amendment's promise of equal protection, the US Supreme Court has not consistently interpreted it to include protection from sex discrimination. This interpretation has resulted in limited legal protection for individuals experiencing sex discrimination.
Additionally, the interpretation of constitutional principles can shape the understanding of equality before the law. For instance, in the early colony of New South Wales, the principle of equality was applied to protect the rights of all citizens, including convicts like Susannah and Henry. Their case demonstrated that, regardless of social standing, individuals had the right to equal access to justice and fair trials.
The interpretation of equality and human rights under the constitution is a dynamic process that requires ongoing scrutiny and advocacy. Interpretations can shape the legal protections and rights afforded to different groups, highlighting the significance of consistent interpretation and enforcement to uphold equality and human rights.
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Frequently asked questions
There are multiple theories of constitutional interpretation, including originalism and living constitutionalism. Originalists believe that the constitutional text should be given the original public meaning that it would have had at the time that it became law. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change.
Originalism is grounded in the two-century-long movement toward constitutionalism, which is behind the U.S. Constitution itself. Originalism also provides a set of rules for judges to follow when interpreting the Constitution, which can help to ensure consistency and objectivity in their rulings.
Living constitutionalism allows the Constitution to adapt to changing social attitudes and can help to ensure that the Constitution remains relevant and responsive to the needs of society. It also allows for the correction of erroneous original interpretations, such as in the case of racial segregation.
There is an argument that the constitution should only be changed when there is broad societal agreement, and that interpretation should be left to the Supreme Court. However, there is also a view that the constitution should be able to adapt to societal change without the need for formal amendment, and that judges should have the power to interpret it in a way that reflects current social attitudes.
