Interpreting The Constitution: A Debate Over Original Intent

There has been much debate over the interpretation of the Constitution, with many arguing that the document must be interpreted in light of the original meaning and common understanding of those who ratified it. Others suggest that the original meaning of the document as drafted by the founders is irrelevant and that constitutional decision-making should be based on a judge's understanding of certain fundamental principles of moral philosophy. The Supreme Court has relied on certain methods or modes of interpretation when deriving meaning from the text of the Constitution, and there is significant debate over which sources and methods of construction the Court should consult. Some scholars have argued that in striking down laws or actions, the Court has decided cases according to the Justices' own political preferences.

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Originalism vs Living Constitutionalism

Interpreting the United States Constitution has been a point of controversy. Some legal scholars argue that the document must be interpreted in light of the original meaning and common understanding of those who ratified it. Others suggest that the original meaning of the document as drafted by the founders is unknowable or irrelevant, and that constitutional decision-making should be based on a judge's understanding of certain fundamental principles of moral philosophy.

Originalism is a theory of constitutional interpretation rooted in history that was forgotten during the 20th century. It calls for an understanding of the Constitution based on what the Constitution says. Originalism contends that the Constitution has a permanent, static meaning that is derived from the text. There are two versions of originalism: original intent and original meaning. Original intent interprets the Constitution based on what its drafters originally intended when they wrote it. Original meaning interprets the Constitution based on the original meaning of the text, not necessarily what the founders intended but how the words they used would have been understood at the time. Textualism is closely related to originalism and interprets legal texts based on the text's ordinary meaning.

Living constitutionalism, on the other hand, is a theory that calls for judges to interpret the Constitution according to evolving societal standards rather than its language. In other words, judges consider what the Constitution ought to say if it were written today. This approach allows judges to interpret the Constitution based on contemporary values and priorities, which can be particularly important when dealing with vague or outdated constitutional text.

The debate between originalism and living constitutionalism is ongoing. Some commentators question the legitimacy of fixating on the core meaning of a particular provision of the Constitution, while others argue for interpretive methods that ensure the Court's decisions allow the government to function properly, protect minority rights, and safeguard the basic structure of government. The Supreme Court has relied on certain "methods" or "modes" of interpretation, such as national ethos, when reviewing the constitutionality of governmental action. However, there are concerns that the Court's decisions may be influenced by the Justices' own political preferences.

Judicial interpretation

However, critics of originalism argue that it is impractical to adhere solely to the original meaning of the Constitution, especially in modern times. They highlight that the framers of the Constitution, such as James Madison and Alexander Hamilton, often disagreed, making it challenging to ascertain a singular original intent. Additionally, critics argue that there is no indication that the framers intended for originalism to be followed. Instead, they suggest that interpretive methods should focus on ensuring the Court's decisions allow the government to function properly, protect minority rights, and safeguard the basic structure of government.

Living constitutionalists, on the other hand, believe that the meaning of the Constitution evolves as social attitudes change. They argue that the Constitution should be interpreted in light of contemporary social needs and values. This approach is supported by judges such as Posner and scholars like Strauss, who emphasize that constitutional problems are best solved by debating today's values rather than relying solely on the original text. Living constitutionalism acknowledges that the Constitution is a living document that adapts to societal changes, ensuring its relevance and applicability in modern times.

The debate over judicial interpretation also extends to the role of the Supreme Court and the methods it employs to interpret the Constitution. The Supreme Court has been criticized for allegedly making decisions based on the political preferences of the justices rather than a neutral interpretation of the Constitution. This criticism has sparked discussions about the appropriate sources and methods of construction the Court should utilize when interpreting the Constitution. Some scholars advocate for interpretivism, which emphasizes neutral principles and seeks to preserve the balance between majority rule and the freedoms of minorities.

Ultimately, the debate over judicial interpretation of the Constitution revolves around the tension between adhering to the original meaning and adapting to changing social and political contexts. While originalists prioritize the fixed meaning and intentions behind the text, living constitutionalists emphasize the need for the Constitution to remain relevant and responsive to societal evolution. The ongoing dialogue between these perspectives shapes how the Constitution is interpreted and applied in modern legal contexts.

Judges' political preferences

The interpretation of the Constitution by the judiciary has been a subject of debate, with some scholars arguing that the Supreme Court has decided cases according to the Justices' political preferences. Judges are expected to refrain from political activity and not allow political, financial, or other relationships to influence their conduct or judgment. They are also prohibited from making speeches for political organizations or candidates, publicly endorsing or opposing them, or soliciting funds for them.

The debate over interpreting the Constitution centres on whether to adhere to the original meaning and understanding of those who ratified it or to interpret it based on fundamental principles of moral philosophy. Some legal scholars argue for an interpretive method that ensures the Court's decisions allow the government to function, protect minority rights, and safeguard the basic structure of government.

However, the Supreme Court has relied on certain "methods" or "modes" of interpretation, which has resulted in controversy over the sources and methods consulted. The Court's interpretation of the Constitution can have a significant impact on the nation's most important issues, and its power of judicial review can involve unelected judges overturning the decisions of democratically elected officials.

Some commentators have questioned the fixation on the Framers' or ratifiers' intentions, while others argue for an empirical" analysis of the text's meaning to those who ratified it. The debate also extends to the recognition of specific rights, with some rights, such as free speech and equal protection, being more widely accepted than others, such as the right of women to choose to terminate their pregnancies.

The role of judges in interpreting the Constitution is crucial, and their decisions can shape the nation's future. The debate over the proper interpretation of the Constitution remains ongoing, with various methods and theories influencing constitutional dialogue and shaping the country's future.

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Original intent vs modern values

Interpreting the Constitution has been a topic of debate for many years, with some arguing for originalism and others for living constitutionalism. Originalism is the theory that the Constitution should be interpreted based on its original meaning and the intentions of those who drafted and ratified it. On the other hand, living constitutionalists believe that the meaning of the Constitution should evolve as social attitudes change.

Original Intent

Originalists argue that the Constitution should be interpreted based on its original meaning and the intentions of those who drafted and ratified it. They believe that the core meaning of the text does not change over time unless it is formally amended. This theory assumes that there is an original meaning that can be discovered and applied to modern times. However, critics argue that it is difficult to determine the original intent of the Framers, as even James Madison and Alexander Hamilton had differing interpretations. Additionally, originalism may not reflect the underlying purpose and contemporary social needs of the present time.

Modern Values

Living constitutionalists, on the other hand, argue that the meaning of the Constitution should evolve as society changes. They believe that interpreting the Constitution based on its original meaning could lead to outdated or irrelevant applications. Instead, they suggest that constitutional decision-making should be based on fundamental principles of moral philosophy and contemporary values and priorities. Living constitutionalism allows for the document to remain relevant and adaptable to modern times, ensuring that the government can function properly and protect the rights of minorities.

Judicial Interpretation

The interpretation of the Constitution is often left to the courts, specifically the Supreme Court. Judges may rely on various methods, including textual interpretation, original intent, and modern values, to determine the meaning of the Constitution. However, there is significant debate over which sources and methods they should use. Some scholars argue that judges should only impose constraints based on the limitations found in the written Constitution, while others believe that judges have the power to make laws based on their interpretations. The Supreme Court has been criticised for allegedly making decisions according to the Justices' own political preferences.

Minority rights

The concept of majority rule is that the majority should make political decisions for the whole group. However, the idea of minority rights is that minorities have rights that cannot be taken away by elected majorities. In a constitutional democracy, there is an ongoing tension between the contradictory factors of majority rule and minority rights. The essence of democracy is majority rule, but constitutional democracy requires majority rule with minority rights.

Thomas Jefferson, the third President of the United States, expressed this concept of democracy in 1801 in his First Inaugural Address. He said:

> All ... will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect and to violate would be oppression.

In a constitutional democracy, public officials in the institutions of representative government must make authoritative decisions about two questions: When, and under what conditions, should the rule of the majority be curtailed in order to protect the rights of the minority? And, when, and under what conditions, must the rights of the minority be restrained in order to prevent the subversion of majority rule?

The founders of the United States hoped to protect minority rights in a majority-ruled society. To enact them, they wrote out a series of amendments to the United States Constitution that spelled out freedoms that could not be amended, removed, or limited by the majority. For example, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

In the United States Congress, there is always one political party that controls the chamber. However, the minority party can discuss and debate any bills brought forward for consideration. Although the majority party maintains control of a chamber, the minority is free to debate, argue, and present their ideas without fear of political or governmental persecution.

Judge Robert Bork contended that the legitimacy of judicial power rests upon the principle that judges should only impose constraints upon democratic majorities based upon the limitations found in the written Constitution. He exhorted the courts to apply neutral principles in determining the scope and level of generality of constitutional rights.

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