Interpreting The Constitution: Who Decides?

The interpretation of the US Constitution and its amendments is a complex and evolving process that involves various institutions and individuals. While the Supreme Court plays a crucial role in interpreting the Constitution, it is not the sole interpreter. The text of the Constitution, constitutional debates, prior court decisions, and societal changes all influence the interpretation. Landmark cases such as Brown v. Board of Education and Roe v. Wade reflect the Court's impact on civil rights and personal liberties. The Court's interpretations shape the legal landscape regarding individual rights against government actions, and its decisions help maintain a balance within the US political system. However, the idea of judicial supremacy in interpretation has been criticized by legal scholars and government officials who argue for a more inclusive approach that considers the contributions of regular citizens, lawyers, social movements, journalists, scholars, and politicians.

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The importance of text and history

Interpreting the US Constitution and its amendments is a complex task that involves examining the text and considering historical context. This process is crucial for understanding the document's original meaning and applying it to modern times.

Textualism is a mode of interpretation that focuses on the plain meaning of the words in the Constitution. It considers how people at the time of ratification would have understood the terms and the context in which they appear. Textualists believe there is an objective meaning to the text and do not typically consider the intentions of those who drafted, adopted, or ratified it. For example, the Constitution clearly states that individuals under 35 years old are ineligible to be President, leaving no room for interpretation.

However, the Constitution is also broadly worded in many parts, allowing for different interpretations. For instance, the Second Amendment's right to bear arms has been interpreted differently over time, with the Supreme Court ruling in 2008 that it extends to all citizens, not just those serving in a militia. This ambiguity often requires the Court to interpret provisions based on specific legal and factual circumstances.

Historical practices and precedents are another important aspect of interpretation. Courts often refer to long-standing practices and prior decisions of political branches, especially when dealing with questions about separation of powers, federalism, and individual rights. For example, in Riley v. California, the Court ruled that a warrant is needed to search the contents of a cellphone during an arrest, relying on historical practices and individual rights.

The Supreme Court, as the highest judicial body, plays a significant role in interpreting the Constitution. However, critics argue that this view of judicial supremacy is flawed, and a broader approach should be considered, including the involvement of regular people, lawyers, social movements, journalists, scholars, and government officials.

In conclusion, interpreting the Constitution and its amendments requires a careful examination of the text and a deep understanding of historical context and practices. This process ensures that the document's meaning is applied accurately and adapts to the changing needs of society.

Supreme Court interpretation

The Supreme Court is established by Article III of the US Constitution, which states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Constitution grants Congress the power to determine the Supreme Court's structure, which it first exercised in the Judiciary Act of 1789. This Act established a Supreme Court with six justices and a lower federal court system. The number of seats on the Supreme Court has varied over time, but since the Civil War, it has been fixed at nine justices, including one Chief Justice and eight Associate Justices.

The Supreme Court's most well-known power is judicial review, or the ability to declare a Legislative or Executive act unconstitutional. This power was established in the landmark case of Marbury v. Madison in 1803, where the Court held that an Act of Congress contrary to the Constitution could not stand. The Court's interpretation of the Constitution and laws is crucial, as it has the final say on whether a right is protected by the Constitution or when a Constitutional right has been violated. The Court's interpretation can shape public policy and impact the lives of Americans.

The Supreme Court's interpretation of the Constitution is influenced by various factors. The text of the Constitution itself is the primary source, but the Court also considers constitutional and ratification convention debates, prior Court decisions, pragmatic and moral considerations, and long-standing congressional or legislative practices. The Court may use multiple sources to decide a case, and the Justices exercise discretion in choosing and coordinating the materials they consult.

While the Supreme Court has the final say on constitutional interpretation, this view has been debated. Some legal scholars and government officials criticise the idea of judicial supremacy, arguing that legislators are capable of interpreting the Constitution and that judicial review should be abolished in favour of popular constitutionalism. They view the judiciary as an organ of power without legitimacy in democratic theory or the Constitution. However, others defend the role of the Supreme Court, highlighting its importance in ensuring each branch of government recognises its limits and providing a check on federal power.

Common law decision-making

Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions, rather than statutes or constitutions. Common law is also referred to as case law or ratio decidendi. It is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historical documentation in collections of case law known as yearbooks and reports.

Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. For example, in criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor presents the evidence to a neutral adjudicator, who makes a decision. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints.

The principle of stare decisis, a Latin phrase that means "to stand by things decided", is central to common law. In practice, this means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. For example, if a court makes a particular decision based on a specific set of facts, then the court is required to follow that decision if they ever rule on the same or a closely related issue.

Common law is used in many countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The U.S. common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. Today, the U.S. operates under a dual system of both common and civil law. Every U.S. state except Louisiana has a common law legal system.

Common law has its limitations. For example, past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This system has made it difficult for marginalized parties to pursue favourable rulings until popular thought or civil legislation changes the interpretation of common law.

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Empirical analysis

The interpretation of the US Constitution and its amendments is a complex and multifaceted process that involves various methods and approaches. One prominent approach is "originalism", which asserts that the meaning of the constitutional text is fixed and does not change over time. Originalists believe that the Constitution's text had an "objectively identifiable" or public meaning at the time of its founding, and this meaning remains unchanged unless formally amended. This approach considers the understanding of the text by the populace at the time of its adoption. Originalists often refer to historical sources to determine the original intent and meaning of the amendments. For example, in the case of District of Columbia v. Heller, the Supreme Court examined historical sources to interpret the original meaning of the Second Amendment.

Another mode of interpretation is "textualism", which focuses on the plain meaning of the text. Textualists emphasize how the terms in the Constitution would have been understood by people at the time of ratification and the context in which those terms appear. They believe there is an objective meaning to the text and typically do not consider the intentions of its drafters, adopters, or ratifiers. Textualism is often contrasted with originalism, as originalists take into account the understanding of the populace at the time, while textualists focus solely on the text itself.

"Living Constitutionalism" is another theory of interpretation that stands in contrast to originalism. Living constitutionalists believe that the meaning of the text changes over time as social attitudes evolve, even without formal amendments. They argue that racial segregation, for instance, was constitutional from 1877 to 1954 because public opinion favored it. It was only after the Supreme Court decision in Brown v. Board of Education that racial segregation became unconstitutional. Living constitutionalists highlight the dynamic nature of social attitudes and their impact on constitutional interpretation.

The Supreme Court plays a significant role in interpreting the Constitution and its amendments. Through its rulings, the Court shapes the understanding and application of constitutional provisions. For instance, in the case of West Virginia State Board of Education v. Barnette, the Court held that the First Amendment prohibited a state from compelling students to salute the American flag, invoking the nation's character as reflected in the Constitution. The Court's interpretations often extend beyond the literal text of the amendments, considering the broader context and implications.

Originalism

In 1985, Edwin Meese, the United States Attorney General under President Ronald Reagan, promoted a similar idea in a speech before the American Bar Association. Meese argued for a constitutional jurisprudence based on original intent, which would yield defensible principles of government untainted by ideological bias. However, Justice William Brennan rejected this view, claiming that the original intent of the Founding Fathers was indiscernible, and the text could only be understood in present terms.

Law professor Raoul Berger expanded on the theory in his 1977 book "Government by Judiciary", arguing that rulings by the Warren and Burger Courts were illegitimate because they deviated from the Constitution's original intent. Originalism has faced criticism from supporters of the Living Constitution concept, which asserts that a constitution should evolve and be interpreted based on the context of current times.

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