Jonah Patel
Interpreting the constitution loosely is known as 'originalism', a mode of interpretation that considers the meaning of the constitution as understood by the populace at the time of its founding. Originalism is one of the two primary constitutional interpretation styles, the other being progressive. Originalism includes three primary styles: original intent, textualism, and strict constructionism. Textualism, also known as strict constructionism, is the most common mode of interpretation, focusing on the plain meaning of the text of a legal document. Original intent, on the other hand, relies on the intentions of the framers of the constitution. The Supreme Court has relied on these modes of interpretation to review the constitutionality of governmental actions, with the power of judicial review being one of its most famous and closely associated authorities.
| Characteristics | Values |
|---|---|
| Interpretation Style | Originalist or Progressive |
| Originalist Styles | Original Intent, Textualism, Strict Constructionism |
| Textualist Approach | Focus on the text of the document |
| Originalist Approach | Consider the meaning of the Constitution as understood by the populace at the time of founding |
| Historical Practices | Long-established practices of political branches |
| Judicial Review | Power to review the constitutionality of governmental action |
| Ideological Spectrum | Judges decide cases based on their ideological values and attitudes |
| Living Constitution | A body of law that grows and changes to meet the needs of a changing society |
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Textualism
Textualist judges have argued that courts should not treat committee reports or sponsors' statements as authoritative evidence of legislative intent. This approach has had a significant practical impact. Textualism is sometimes referred to as pure textualism or literalism. However, Justice Scalia, who was both a textualist and an originalist, criticised this strict constructionist approach to textualism. He wrote that a text should not be construed strictly or leniently, but reasonably, to contain all that it fairly means.
An example of textualism in practice is the case of K-Mart v. Cartier, 486 U.S. In this case, the majority interpreted the phrase "of foreign manufacture" in a statute as meaning "manufactured by a foreigner" rather than "manufactured in a foreign country". This interpretation was based on the ordinary meaning of the words in the text, considering the context in which they were used.
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Originalism
In 1977, law professor Raoul Berger expanded on Bork's theory, positing that rulings by the Warren and Burger Courts were illegitimate because they deviated from the Constitution's original intent. Edwin Meese, United States Attorney General under President Ronald Reagan, also advanced a similar view in a 1985 speech before the American Bar Association. Meese's view was rejected by Justice William Brennan, who claimed that the original intent of the Founding Fathers was indiscernible, and the text could only be understood in present terms.
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Historical practices
Interpreting the Constitution loosely is called "loose construction" or "liberal interpretation". Now, here is an overview of the historical practices of loose interpretation of the constitution.
Another example of the Court's reliance on historical practices is the case of Zivotofsky v. Kerry (2015). In this case, the Court held that the President had the exclusive power to recognize formally a foreign sovereign and its territorial boundaries, and that Congress could not require the State Department to issue a formal statement contradicting the President's policy on recognition. The Court's decision was based on the historical practice of the President's power to recognize foreign sovereigns, which was not explicitly addressed in the Constitution.
Judicial precedents are not the only type of precedents considered in constitutional interpretation. Long-established historical practices of political branches are also considered by judges, academics, and lawyers when interpreting the Constitution, especially in cases where there is no clear textual answer. This approach to interpretation is sometimes called "functionalism," which invites the use of historical practices as self-affirming support for constitutional meaning. However, formalists generally regard historical practices as irrelevant to constitutional interpretation.
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Judicial review
The power of judicial review is based on the reasoning that it is the inherent duty of the courts to determine the applicable law in any given case. The Supremacy Clause states that the Constitution is the "supreme law of the land," and federal statutes are only valid when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution, and any law contrary to it is void.
There are several modes of constitutional interpretation used by the Supreme Court when reviewing the constitutionality of governmental action. One approach is textualism, which focuses on the plain meaning of the text of a legal document and how the terms would have been understood by people at the time of ratification. Another mode draws inferences from the design of the Constitution, including the relationships between the three branches of the federal government, the relationship between the federal and state governments, and the relationship between the government and the people.
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Original intent
Originalism is a theory of constitutional interpretation that considers the meaning of the US Constitution as understood by the populace at the time of its founding. Originalism is sometimes referred to as "original intent" or "original meaning". Originalists believe that the judiciary should interpret the Constitution in accordance with the understanding of its framers, or the original public meaning that it would have had at the time it became law. This meaning can be discerned from dictionaries, grammar books, other legal documents, and the background legal events and public debate that gave rise to a constitutional provision.
Originalists argue that the Constitution's text had an "objectively identifiable" or public meaning at the time of its founding that has not changed over time. 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 Principles". Bork argued that judges should "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".
Originalism is usually contrasted with living constitutionalism. Living constitutionalists believe that the meaning of the Constitution changes over time as social attitudes change. They argue that the Constitution should evolve and be interpreted based on the context of the current times. For example, living constitutionalists believe that racial segregation was constitutional from 1877 to 1954 because public opinion favoured it, and that it only became unconstitutional after the Supreme Court's decision in Brown v. Board of Education. In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation, even before the Supreme Court's decision in Plessy v. Ferguson.
The originalism debate has divided the American public since the school desegregation decision in Brown v. Board of Education. Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch describe themselves as originalists, while Supreme Court Justice Elena Kagan is a frequent critic of conservative originalism.
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Frequently asked questions
Interpreting the constitution loosely is called "loose construction" or progressive constitutional interpretation.
Progressive constitutional interpretation is a style where judges decide cases based on their ideological values, attitudes, and views about the relevant law and parties involved. This is in contrast to the originalist style, which includes textualism, original intent, and strict constructionism.
In the case of Marbury v. Madison in 1803, the Supreme Court asserted its power to review the constitutionality of federal governmental action, which was a significant step in establishing its authority in this area. This case was an early example of the Court's power of judicial review, which allows it to interpret the Constitution and determine the constitutionality of government actions.
