A Living Document: The Non-partisan Nature of Diversity in Constitutional Interpretation

May 23, 2017

           

 

          Upon revealing his nominee for the U.S. Supreme Court, President Donald Trump praised Judge Neil Gorsuch on the prospect of his interpreting the Constitution “as written.” On the surface, this may seem to suggest a partisan approach, whereby on a sliding scale left to right, one side will maneuver ideologically towards a strict, or word-for-word consultation of the document, while the opposing side will tend towards a less stringent, more universal approach consistent with America’s first principals, while less dependent on the specific language of the Constitution as written. In fact, constitutional interpretation moves well beyond a two-sided, partisan dynamic; there have existed a number of approaches to this challenge throughout our history, all or most of which have been applied free and clear of political alignments.

            When compared to other national constitutions around the world, the U.S. Constitution is surprisingly short. It confines itself to the basic principles and structure of our democracy and does not attempt to address every eventuality, thus deliberately leaving the door open to future interpretation—a design feature which immediately after its drafting brought about the Federalist Papers, in which three principal framers of the document offered differing points of view on its larger implications. Our Constitution has since been referred to as a “living document” in that it may grow and adapt to the pressures of time, both internal and external. It therefore falls to the judges of the Judicial Branch to interpret the scope and intent of the Constitution as social and political issues evolve from one generation to the next. In doing so, four fundamental approaches to constitutional interpretation have emerged.

            The Originalist school of thought empathizes with the authors of the Constitution; it seeks to view the document as its framers would have at the time of its inception. Often called the methodology of “original intent,” originalism looks to the contemporary writings of the framers such as the Federalist Papers and notes from the Constitutional Convention itself in order to gauge how those individuals were motivated towards the specific language of the Constitution and to reasonably determine how they would intend for it to be understood today. Proponents of originalism consider it to be the most “pure” approach to understanding the document. When President Trump speaks of Judge Gorsuch interpreting the Constitution “as written” if confirmed, this is what he’s referring to; Judge Gorsuch is an originalist, as was the late Supreme Court Justice Antonin Scalia. But as we shall see, originalism does not represent the strictest interpretation of constitutional ideals.  

            Originalism draws many opponents, most often from those who subscribe to the modernist school of thought. From the modernist point of view, originalists ask what the Constitution meant at the time it was written, and then argue that the meaning is fixed—it is not required to adapt to changing sociopolitical realities. Modernists on the other hand prefer to look at the Constitution as if it were ratified today, arguing that the document was made intentionally vague in certain areas precisely to allow for a modern interpretation as new and unforeseen challenges arise. In contrast to originalist thinking, modernism asks the question, “Will this interpretation of the Constitution allow society to work better?” Opponents of this viewpoint view that question as falling under the preview of the Legislative Branch—not the loose interpretation of a judiciary which might infringe upon the legislative process. On the current Supreme Court roster, Justice Stephen Breyer would be most closely identified with the modernist approach.

            While originalism and modernism might seem to represent the polar ends of an ideological spectrum, there do exist far more fundamental approaches to constitutional interpretation, in particular the literalist school of thought. Literalism can be separated into two separate approaches—historical and contemporary—both emanating from the same fundamental assertion that interpretation should rely on the specifics of language rather than the ideas which that language may or may not convey.

            Historical Literalists typically reject the notion that the opinions or recorded debates of the framers, such as those found in the Federalist Papers or any other contemporary source, provide a basis for determining constitutional intent. Only the words themselves matter, and only in the historical context—meaning the definition of those words as understood at the time of their drafting. A contemporary literalist will in similar manner hold to the narrow focus of the words themselves as written, but by contrast will interpret their meaning based upon the modern, or current definitions. Simply put, historical literalism might require access to an English dictionary published around 1791, whereas the contemporary approach relies on the most recent agreed upon definitions, but both approaches limit their analysis exclusively to the language as it appears in the Constitution. An example might be extracted from an analysis of the 2nd Amendment, in which the word “militia” appears. In the historical context, the word may simply refer to all “able-bodied” men aged 17-45. In a contemporary examination, the literalist will likely view the word “militia” as being most compatible with the modern National Guard, and this in turn will re-frame one’s view of the 2nd Amendment.

            As you can see, these various means of interpretation differ quite significantly in their respective emphases, but when taken together, they hold the potential to provide a natural balance and counterbalance in considering the structural guidelines of American democracy. Moreover, they stand apart from the ideological polarity of partisan political objectives. Despite their differences, all interpretive schools of thought presented here (including a few hybrids not discussed) focus their scope of consideration on text, history, tradition, precedent, purpose, and consequence in their individual methodologies, and in doing so act as a significant check to the subjectivity so definitive in partisan political debate.

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