Omar Bennett
The interpretation of the US Constitution has been a subject of much debate, with various schools of thought influencing how judges and justices approach constitutional law cases. Textualism, for example, emphasizes the plain meaning of the text, while originalism considers the meaning as understood by the populace at the time of the Founding. The Supreme Court's interpretations and prior decisions on constitutional law are also a significant factor in shaping the Constitution's application. The written Constitution, with its emphasis on popular ratification and election, reflects the Framers' desire for a democratic system of government. However, some argue that the text of the Constitution is irrelevant to constitutional outcomes, creating controversy among legal scholars.
| Characteristics | Values |
|---|---|
| Textualism | 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, as well as the context in which those terms appear. |
| Originalism | An approach that considers the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists agree that the Constitution's text has an "objectively identifiable" or public meaning that has not changed over time. |
| Judicial Precedent | The most commonly cited source of constitutional meaning is the Supreme Court's prior decisions on questions of constitutional law. |
| Writtenness | The Framers wanted to eliminate uncertainty about the law and bind down government officials to the Constitution. |
| Democracy | The Constitution provides for the popular election of representatives, senators, and, indirectly, Presidents. |
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What You'll Learn
- Textualism: the belief that the Constitution has an objective meaning, focusing on the plain text
- Originalism: the belief that the Constitution's meaning is fixed and the task of judges is to uncover it
- Judicial precedent: the idea that constitutional meaning comes from past Supreme Court decisions
- Democracy: the Constitution promotes democracy and the popular election of representatives
- Checks and balances: the Framers wanted to avoid monarchy or aristocracy, instead setting up a system of checks and balances
Textualism: the belief that the Constitution has an objective meaning, focusing on the plain text
Textualism is a mode of interpretation that focuses on the plain meaning of the text of a legal document. Textualists usually believe that the text has an objective meaning, and they do not typically inquire into the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments. Textualism emphasises how the terms in the Constitution would have been understood by people at the time of ratification, as well as the context in which those terms appear.
Textualism is sometimes referred to as pure textualism or literalism. Justice Hugo Black, a famous textualist, believed that the text of the Constitution should serve as the sole source of its meaning. In the Dennis v. United States case, Justice Black dissented on the grounds that the Court should not have applied a balancing test to uphold the law against First Amendment challenges. He argued that the text of the Constitution should be the only source of its meaning.
Justice Antonin Scalia, who was both a textualist and an originalist, criticised a 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.
While textualism focuses solely on the text of the document, originalism considers the meaning of the Constitution as understood by the populace at the time of its founding. Originalists 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. The task of judges and justices is to construct this original meaning.
The Supreme Court has relied on certain "methods" or "modes" of interpretation when reviewing the constitutionality of governmental action. Textualism is one of the most common modes of constitutional interpretation. However, some legal scholars, such as Judge Richard Posner, have argued that constitutional text matters little to constitutional law. He stated that constitutional law is more about creating rules that make sense today than interpreting an old and often obsolete document.
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Originalism: the belief that the Constitution's meaning is fixed and the task of judges is to uncover it
Originalism is a legal theory that bases the interpretation of the Constitution, statutes, and the judiciary on the original understanding of the text at the time of its adoption. Originalists believe that the Constitution's original public meaning should be applied, and that this can be discerned from dictionaries, grammar books, legal documents, legal events, and public debates from the time. This theory stands in contrast to Living Constitutionalism, where the meaning of the Constitution is believed to change over time as social attitudes evolve.
Originalists argue that the original meaning of the Constitution is "objectively identifiable" and has not changed over time. They believe that the task of judges and justices is to uncover this original meaning, rather than interpreting the Constitution based on their own values or political preferences. Jurist Robert Bork proposed that following the original meaning would prevent judges from making "fundamental value choices" in their rulings. Originalists also argue that the Fourteenth Amendment always forbade racial segregation, contrary to the Supreme Court's decision in Plessy v. Board of Education, which upheld segregation.
The originalist interpretation of the Constitution has been influential in American legal culture and academia. Notable originalists include Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. Justice Barrett stated that she interprets the Constitution "as text" and understands it to have the meaning it had when it was ratified. Originalism is also associated with judicial restraint and a critique of judicial activism.
Critics of originalism argue that some parts of the Constitution are intentionally broad and vague, allowing for interpretation by future generations. The concept of a Living Constitution asserts that the Constitution should evolve and be interpreted in the context of the current times. The debate between originalism and Living Constitutionalism has divided the American public, particularly in the context of school desegregation decisions.
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Judicial precedent: the idea that constitutional meaning comes from past Supreme Court decisions
The interpretation of the Constitution is a complex and multifaceted process, and one of the key approaches is through judicial precedent. Judicial precedent holds that the meaning of the Constitution is derived from past Supreme Court decisions on constitutional law. This is based on the principle of stare decisis, which means "to stand by things decided" and refers to the doctrine that courts must follow previous similar cases when the same points arise again in litigation.
Stare decisis is deeply entrenched in the American legal system, with vertical stare decisis holding that the decisions of higher courts, particularly the Supreme Court, take precedence over the decisions of lower courts. This is what makes the Supreme Court "supreme". Horizontal stare decisis, on the other hand, states that decisions made by courts at the same appellate level should serve as precedents for each other.
Judicial precedent provides principles, rules, or standards that can be applied to future cases with similar facts. It is said to promote legal stability, consistency, and predictability in the law, as well as prevent arbitrary decision-making. The Supreme Court, however, does not always have to follow stare decisis. The Court views it as a discretionary "principle of policy" that must be weighed and balanced with its opinions on the merits of the prior decision and other practical considerations.
While judicial precedent is a widely used approach to constitutional interpretation, it is not without its critics. Some scholars argue that it favours the views of the Court over the views of those who ratified the Constitution, allowing mistaken interpretations to persist. They prefer originalist approaches, which consider the meaning of the Constitution as understood by the populace at the time of the Founding.
In conclusion, judicial precedent is a significant aspect of constitutional interpretation, shaping future judicial decisions and contributing to the development of legal principles. However, it exists in a broader context that includes other modes of interpretation, such as originalism, and is subject to ongoing debate and scrutiny.
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Democracy: the Constitution promotes democracy and the popular election of representatives
The Constitution promotes democracy and the popular election of representatives, senators, and, indirectly, presidents. The Framers were determined to set up a democratic system of government and not an English-style monarchy or aristocracy. The Constitution provides for popular ratification and for the popular election of representatives. The people are the ultimate source of authority of the government, and their sovereignty is reflected in the daily realities of the political system.
The Constitution also promotes the fair distribution of the benefits and burdens of society, fair and proper responses to wrongs and injuries, and the use of fair procedures in the gathering of information and the making of decisions by all government agencies, especially law enforcement agencies and the courts. All citizens are equally entitled to participate in the political system, and the law does not discriminate on the basis of gender, age, race, ethnicity, religious or political beliefs and affiliations, class, or economic status.
The Constitution's Framers created what is today called a democratic republic, or a representative democracy, where people vote for representatives to govern on their behalf. However, the Framers' distrust of democracy is also reflected in the document, which contains relatively few democratic elements. The Constitution allowed state legislatures to decide who was qualified to vote, so initially, the only people choosing representatives were property-owning adult white men.
Over time, "We the People" have expanded democracy's role in government, dedicating ourselves to the idea that having our voices heard is an essential part of government. Amendments to the Constitution have expanded who can participate in representative government, with the 15th Amendment guaranteeing African American men the right to vote, the 19th Amendment granting women the right to vote, and the 26th Amendment lowering the voting age from 21 to 18.
In a representative democracy, the people elect representatives to pursue policies that align with their interests and advocate for them. However, critics have argued that this system has resulted in a flawed democracy or "backsliding democracy", where the representatives' policies do not always align with public opinion.
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Checks and balances: the Framers wanted to avoid monarchy or aristocracy, instead setting up a system of checks and balances
The Framers of the U.S. Constitution were keen to avoid a monarchy or aristocracy and sought to set up a democratic system of government. They were influenced by the British constitutional system, which separated powers among the monarch, Parliament, and the courts of law. The Framers also drew on the ideas of Greek statesman and historian Polybius, who identified the Roman Republic as a "mixed" regime with three branches: monarchy, aristocracy, and democracy.
To prevent the concentration of power, the Framers established a system of checks and balances, dividing power between the legislative, executive, and judicial branches of the U.S. government. Each branch exercises certain powers that can be checked by the other two branches. For example, while the President is the commander-in-chief of the military, Congress appropriates funds for the military and votes to declare war. This system aims to ensure that no branch becomes too powerful and guards against tyranny.
Checks and balances also require a balance of power between institutions, so that the goals and actions of one are not completely determined by the other. This interdependence allows each institution to influence the other and hinder it from using its power excessively. For instance, many parliaments consist of two houses, both of which must pass a bill before it becomes a law.
The system of checks and balances has been tested throughout history, particularly with the expansion of the executive branch's power since the 19th century. Presidential vetoes, congressional overrides, and judicial rulings against legislative or executive actions have disrupted the initial balance intended by the Framers. However, overall, the system has functioned as intended, ensuring the three branches operate in balance.
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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. Textualists believe there is an objective meaning to the text and do not inquire into the intent of the drafters, adopters, or ratifiers of the Constitution.
Originalism is an approach to interpretation that considers the meaning of the Constitution as understood by the populace at the time of the Founding. Originalists agree that the Constitution's text had an "objectively identifiable" meaning at the time of the Founding that has not changed over time.
The Supreme Court has the power to review the constitutionality of governmental action and interpret the Constitution. The Court's prior decisions on questions of constitutional law are a commonly cited source of constitutional meaning. Some judges, like Judge Posner, have stated that they do not care about the constitutional text but instead respect the Supreme Court's interpretations of that text.
Some critics, like Justice Scalia, argue against a strict constructionist approach to textualism. He suggests that a text should not be construed strictly or leniently but reasonably to contain all that it fairly means.
