Isabella Carter
There are several schools of thought regarding the interpretation of the US Constitution. Originalism, for example, holds that the Constitution should be interpreted in accordance with its original public meaning at the time it became law. Originalists believe that the Constitution's text had an objectively identifiable meaning at the time of its founding that has not changed over time. Textualism, on the other hand, is a mode of interpretation that focuses on the plain meaning of the text of a legal document, emphasizing how the terms would have been understood by people at the time of ratification. Textualists like Justice Hugo Black contend that the Constitution should be interpreted literally, without considering the intentions of its drafters. Strict constructionism, associated with judges and Justice Antonin Scalia, is another philosophy that interprets the Constitution literally, applying the Founding Fathers' intentions to current situations. Critics of strict constructionism, like Justice Ruth Bader Ginsburg, argue that the Constitution should be interpreted anew for each generation to keep pace with changing societal norms.
| Characteristics | Values |
|---|---|
| Type of interpretation | Textualism |
| Focus | Plain meaning of the text |
| Emphasis | How terms would be understood by people at the time of ratification |
| Consideration of intent | No |
| Consideration of context | Yes |
| Consideration of practical consequences | No |
| Consideration of public meaning | Yes |
| Consideration of social attitudes | No |
| Type of interpretation | Originalism |
| Type of judge | Strict constructionist |
| Type of document | Living document |
| Type of interpretation | Strict constructionism |
| Type of judge | Textualist |
| Type of judge | Originalist |
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Textualism
Textualists argue that courts should read the words of a statutory text as any ordinary Member of Congress would have read them. They look for the meaning "that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris [the body of law]". Textualists are not concerned with the practical consequences of a decision; rather, they are wary of the Court acting to refine or revise constitutional texts.
The Trop plurality's use of textualism in combination with other interpretive methods is distinguishable from a stricter textualist approach espoused most famously by Justice Hugo Black. Justice Black's view was that those interpreting the Constitution should look no further than the literal meaning of its words.
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Originalism
Justice Antonin Scalia, who was both a textualist and an originalist, criticised strict constructionism, arguing that a text should not be construed strictly or leniently, but reasonably, to contain all that it fairly means. Another notable figure associated with textualism is Justice Hugo LaFayette Black, who took a stricter approach, contending that those interpreting the Constitution should look no further than the literal meaning of its words.
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Strict constructionism
The approach is often associated with originalism, which interprets the Constitution in the context of the language and rules of the time it was written. However, they are distinct, as originalism considers the understanding of the Constitution by the populace at the time of its founding.
The term strict constructionism is often used in American politics, with Republican presidents such as George W. Bush and Donald Trump promising to nominate strict constructionist judges. The term was also used by Democrats during the antebellum period to argue for a strict interpretation of the powers of the federal government, ensuring that the bulk of governmental power remained with the states.
Critics of strict constructionism include Justice Antonin Scalia, who rejected the label despite being a proponent of textualism. He argued that a text should not be construed strictly or leniently, but reasonably, to contain all that it fairly means. Scalia and other critics consider the term misleading or meaningless, and few judges self-identify as strict constructionists.
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Hugo Black's view
Hugo Black was a US Supreme Court Justice who served for 34 years, from 1937 to 1971, and is widely considered to be one of the most influential justices of his time. He was an avid supporter of civil liberties and strict adherence to the text of the Constitution, earning him the label of an 'activist'. Black's views on the Constitution were shaped by his reading of British history and his interpretation of due process. He advocated for equal treatment by the government for all persons, regardless of wealth, age, or race.
Black's interpretation of the Constitution was based on a strict form of textualism or literalism. He believed that those interpreting the Constitution should look no further than the literal meaning of its words. This view, also known as pure textualism or strict constructionism, emphasizes the plain or popular meaning of the text as it would have been understood by people at the time of ratification. Textualists typically believe that there is an objective meaning to the text and do not consider the intent of its drafters when deriving meaning. Black's textualist approach led him to dissent in several notable cases, including Dennis v. United States (1951) and Katz v. United States (1967).
In the former case, Black dissented from the majority opinion that Congress could criminalize the conspiracy to advocate for the forcible overthrow of the US while still upholding the First Amendment's guarantee of freedom of speech. Black interpreted the First Amendment's statement that "Congress shall make no law...abridging the freedom of speech, or of the press" as an absolute command that forbade Congress from enacting any law that would curtail these rights. He similarly applied this strict interpretation to the Fourth Amendment in Katz, arguing that it only protected tangible items from physical searches or seizures.
Black's commitment to literalism extended beyond specific amendments and shaped his broader views on the role of the judiciary. He believed that the Constitution restricted the power of judges, who should validate the supremacy of the legislature unless it denied people their freedoms. Black often lectured his colleagues on the Supreme Court about the importance of acting within the limits of the Constitution. He saw his role as enforcing the rights outlined in the Constitution rather than defining their meaning, scope, or extent.
In addition to his textualist approach, Black has also been described as a constitutional absolutist, particularly regarding the First Amendment. However, it is important to note that he took a narrow view of what constituted "speech" under this amendment. For instance, he did not consider flag burning or wearing a jacket with obscene language as protected speech, viewing these acts as "conduct" rather than speech.
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Antonin Scalia's view
US Supreme Court Justice Antonin Scalia was a textualist and an originalist. He believed in narrowly interpreting the Constitution and other legal statutes based on the written text and its original meaning. He stressed the importance of text and historical tradition in interpreting the Constitution.
Scalia's philosophy of originalism was based on the idea that the Constitution should be interpreted in the context of when it was written, rather than changing with society over time. He argued that the living Constitution approach leads to interpreting the Constitution to fit the needs of a changing society, which can result in the expansion of rights that are not explicitly mentioned in the document. Scalia believed that this expansion of rights should be left to elected politicians and not the courts.
In his view, issues such as abortion and homosexuality, which are not mentioned in the Constitution, are matters for which citizens and states can enact laws. He also held a narrow interpretation of the religion clauses of the First Amendment, arguing that the Constitution prohibits the government from placing excessive burdens on political parties' rights of political speech and association.
Scalia's approach to constitutional interpretation has been described as enduring rather than living. He believed that the original meaning of the Constitution provides the firmest grounding for court decisions. He warned of the dangers of interpreting the Constitution to address problems that could be handled by Congress.
Scalia's interpretation of the Constitution has been contrasted with the more flexible "living Constitution" approach, which adapts to the needs of a changing society. While supporters of the "living Constitution" view argue for flexibility, Scalia believed that they ultimately seek rigidity and want the entire country to conform to their interpretation of the document.
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Frequently asked questions
Textualism is a mode of interpretation that focuses on the plain meaning of the text of a legal document. Textualism emphasizes how the terms in the Constitution would be understood by people at the time they were ratified. Textualists usually believe there is an objective meaning of the text and do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution.
Justice Hugo Lafayette Black is famous for his strict textualist approach. Justice Antonin Scalia is another well-known textualist and originalist.
Textualist approaches to constitutional interpretation focus solely on the text of the document, while originalist approaches consider the meaning of the Constitution as understood by the populace at the time of its founding. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.
