Jonah Patel
The interpretation of the constitution is a complex and multifaceted process, and jurists employ a variety of theories and methods in their decisions. Two of the most prominent approaches are originalism and living constitutionalism. Originalism asserts that the Constitution should be interpreted according to the original intentions of its authors, while living constitutionalism views it as a flexible, evolving document that adapts to modern contexts and values. These theories shape how judges approach cases, influencing their rulings and interpretations of the law. The Supreme Court's decisions are based on these distinct methods, with justices adopting specific styles such as textualism, pragmatism, and structuralism, each with its own nuances and implications. The interpretation styles of justices are crucial in understanding their behaviour and decision-making processes, and they are constantly analysed and discussed by scholars and legal professionals.
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Originalism
Proponents of originalism argue that it was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence. Jurist Robert Bork is credited with proposing the first modern theory of originalism in his 1971 law review article, "Neutral Principles and Some First Amendment Problems", published in The Yale Law Journal. Bork noted that without specification in a constitutional text, judges are free to input their own values while interpreting a constitution. He proposed that judges should instead take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules.
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Legal realism
Legal realists believe that the law cannot be separated from its application and must be understood in the context of its implementation. They emphasize the importance of examining the human element of jurisprudence and the material impact of legal decisions on individuals. This approach highlights the role played by politics in judicial decision-making and questions the notion of an impartial judicial power.
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Living constitutionalism
The concept of a living constitution suggests that the document is transformed according to the necessities of the time and situation. This theory is associated with the belief that contemporary society should be considered in the interpretation of constitutional phrases. Proponents of living constitutionalism argue that the Constitution was written in broad and flexible terms, creating a dynamic and "living" document. They contend that interpreting the Constitution based on its original meaning may fail to protect minority rights, as women and minorities did not have the same rights when the Constitution was ratified.
One argument in favour of living constitutionalism is the belief that the Constitution should be able to adapt to the changing needs of society. As the world has evolved significantly since the Constitution was adopted over 200 years ago, a static Constitution may become outdated and hinder progress. Supporters of living constitutionalism argue that it is necessary to interpret the Constitution dynamically to ensure it remains relevant and effective in the modern world.
Critics of living constitutionalism, however, argue that it undermines democracy. They believe that allowing judges to change the Constitution's meaning gives them too much power and that legislative action better represents the will of the people. Opponents also argue that the Constitution should be changed through a formal amendment process, as this ensures that any modifications are made in a deliberate and considered manner.
The debate between living constitutionalism and originalism continues to shape legal and political discourse in the United States. While living constitutionalism emphasizes the need for a flexible and adaptable Constitution, originalism emphasizes fidelity to the original meaning and intent of the document. The Supreme Court's rulings reflect the ongoing tension between these two interpretive frameworks.
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Pragmatism
A judge employing this method seeks to balance the costs and benefits of a particular ruling, including its consequences and any concerns about the limits of judicial power and competence. This approach allows the court to avoid becoming frequently embroiled in public controversies, preserving its institutional capital for key cases, and giving more space for democratic branches to address the issue.
For example, in Van Orden v. Perry, Justice Stephen Breyer, a noted pragmatist, evaluated the constitutionality of a Ten Commandments monument on practical grounds. He considered the role of the judiciary in deciding a question of constitutional law and the potential consequences of the ruling. This allowed for a more flexible interpretation of the constitution, which can be adapted to modern times and changing societal values.
Another example of pragmatism in action is the Supreme Court's decision in Baker v. Carr. In this case, Justice William Brennan, writing for the majority, debated with a dissenting Justice Felix Frankfurter about whether the Court was the appropriate venue for deciding the issue at hand. By considering the passive virtues and the potential impact on the Court's reputation and role, the judges applied a pragmatic approach to constitutional interpretation.
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Structuralism
One notable example of the application of structuralism is the National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) case. In this instance, Chief Justice John G. Roberts Jr. employed structuralism by analyzing the structure of the Constitution and the powers it grants to Congress. This interpretation played a significant role in upholding most of the Affordable Care Act.
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Frequently asked questions
There are many types of constitutional interpretations, but two of the most common are originalism and living constitutionalism.
Originalism is a theory that the constitution should be interpreted according to the original intentions of its authors. This method is considered by some to be flawed and inflexible, as the authors of the constitution could not have conceived of some modern situations.
Living constitutionalism is an interpretation of the constitution that is inherently subjective and evolves with time. This method is sometimes perceived as a reflection of individual justices' political views.
Other types of constitutional interpretation include legal realism, textualism, prudence/consequences, and pragmatism.
The different interpretations of the constitution affect how justices make decisions, especially in cases that are rarely clear-cut, such as Fourth Amendment cases.
