Constitutional Interpretation: Final Thoughts


Speaking to the interpretations of Brennan and Scalia, I believe both interpretations are correct and incorrect. Both theories support themselves. Originalism is correct in its’ paranoia; there is a very apparent anxiety of judges reading their own values into the Constitution that other interpretive theories perhaps do not address. Originalism is required of Brennan’s contemporary ratification; we must look to the text and the “intervening history” (239) as proper guides. Without them, we would be left to defy the aspirations and goals the Constitution reminds us to adhere to. But without contemporary ratification, society wouldn’t be able to grow. Change would instead be held back by the Constitution, rather than liberated. A new Constitution would have to be ratified far more often.

Rehnquist is correct in asserting that the majority does hold a major influence in society; but I do not necessarily agree that such an influence resides in the Constitution. Society is not formed through Constitutional ratification; rather, I maintain the Constitution is a consequence of society. Society and the Constitution do not always reflect themselves in values, understanding, moral judgment, etc. Society is at times more progressive or more conservative than the Constitution. But society changes opinions and values quite frequently. Wherein fifty years ago, concepts of equality bore a far different meaning than they did in 2005, and even from 2005 till now. Constitutional interpretation, I believe needs to remain broad and vague enough to account for the bipolar society it originated from. But that very argument I have just made seemingly for a system of majoritarian rule negates such a system. Society is bipolar, changing opinion based on assertion of various factors. The rule of the majority must remain balanced with the wishes and values of the opposing minority. If we were to allow the majority to rule, only the popular opinions would prevail. Our country would be in a very different place, socially and in our philosophic interpretations. Segregation could still be very alive and well in America if the majority ruled; in fact, even at the time of the founding more Americans sided with Great Britain than becoming an independent nation.

Constitutional Interpretation: Majority Rule and Concepts v Conceptions


William Rehnquist largely agrees with Brennan’s interpretation of a living Constitution, furthering the idea that the Constitution empowers the majority and therefore the majority are the final arbiters of the document. But he also concedes three major defects of the living Constitution: (1) being that it misconceives the nature of the Constitution, enabling not the Judiciary but the popularly elected branches of government, (2) it ignores the “disastrous experiences” (245) when the Court has embraced the contemporary (for example, Dredd Scott), and (3) asserting that the desirable goals of a society are pushed through the Judiciary, who are nonelected and lifetime tenured, is itself an unconstitutional violation of the democratic society.

From my interpretation of Rehnquist, I find that his theory, while in part rooted in Brennan’s contemporary ratification, denies the Court responsibility to enact and be held accountable for actions that by and large should be dealt with in the Legislature and Executive branches. Limiting the power and scope of the Court’s ability to declare laws unconstitutional, it seems, is the fundamental difference between Brennan and Rehnquist.

“Representative government is predicated upon the idea that one who feels deeply upon a question as a matter of conscience will seek out others of like view or will attempt to persuade others who do not initially share that view. When adherents to the belief become sufficiently numerous, he will have the necessary armaments required in a democratic society to press his views upon the elected representatives of the people, and to have them embodied into positive law.” (247) This is, by all accounts, how our democratic society works. An idea must be presented, fiercely debated, before being adopted or rejected by the majority. That majority then must elect or persuade their representatives to support the same idea. This is, in Rehnquist’s view, the proper interpretation of the Constitution; through the power of the elected majority.

I take issue with this belief, but my issues are for the most part outlined in Ronald Dworkin’s proposal so I will simply continue to that.

“The Constitutional theory on which our government rests is not a simply majoritarian theory. The Constitution…is designed to protect citizens and groups against certain decisions that a majority of citizens might want to make.” (248) Dworkin believes that Rehnquist’s argument poses a majoritarian dilemma. He insists that the Constitution is built around protecting the minority from the majority; not, as Rehnquist argues, leaving fate in the hands of the majority. The reverberations felt by American society, for example, would not have been felt by the decision passed down in Brown v. Board of Education if we were to assume that the majority held control of the Constitution. A majority of Americans and their representatives believed in separate-but-equal legislation, which the Brown case shredded.

Dworkin makes another far more important point in his theory however; he establishes the system of concepts and conceptions. He asserts that a “concept” is a general principle that is easily agreeable by most people. The Constitution, he believes, is full of concepts. A “conception” is a particular theory within a general Constitutional concept. So for example, Equality is a concept riddled throughout the Constitution that is broad and general enough to be agreeable by most people. But how we achieve equality is where people disagree. Affirmative Action allowing schools to ask for race when students fill out an application; whether equality includes the right to marry an individual of the same sex as you. Gay marriage and affirmative action are examples of “conceptions” within the particular “concept” of equality.

To further his point, Dworkin criticizes Originalism for its failure to distinguish between the two. Dworkin believes it is not appropriate to take a particular conception (such as privacy or equality) and inject it into your interpretive theory because the Constitution is not filled with conceptions; it’s filled with concepts. The particular conception that defects Originalism is original intent; “what would the Framers do?” The Constitution cannot provide an answer to this question because the Framers intent was to construct a Constitution of concepts; remaining broad and vague enough in their wording and structure to leave interpretation in the hands of succeeding generations. The Constitution is deliberately vague because it reflects concepts.

If the Constitution was filled with conceptions rather than concepts, Dworkin believes it would be a legal code. I agree with Dworkin’s reasoning and agree that the Constitution is not filled with conceptions, as time and tradition have shown. If the Constitution were a legal code, it would require revision far more often than it has seen. And if there are general concepts in the Constitution, the hard part bestowed upon each generation is to figure out how to take that concept and apply it to a concrete set of facts; a case brought before the Supreme Court. In order to do that, you need a particular conception. When it comes to deciding the particular conception, that decision is interpretation, and interpretation necessities value judgments by those the case is brought before (the judges). The concepts are general values rooted in the Constitution, but that doesn’t speak to how to apply them.

Understanding Constitutional Interpretation


If you have ever held a political opinion, you have perhaps unknowingly interpreted the Constitution. You’re certainly not alone in doing so, but maybe you aren’t completely aware of how important interpretation of our Constitution is. Interpretation has influenced much of our politics throughout history, both in ideology (conservative v. liberal) and in law. Our laws, all of our laws, abide by the Constitution. They are measured against it to ensure our county not sway from the founding principles. But what those principles are exactly is where we disagree. For example, if the Constitution says the role of government is to promote the “general welfare” of its people, does that include providing healthcare for them? Some would say yes and some would say no. Just by stating an opinion on such an issue means you are interpreting the Constitution.

There are countless interpretations of the Constitution and no way to sift through the legitimacy of them all, but I would like to write about a few that I learned from reading my American Constitutional Interpretation book. It’s a book I bought after taking a Constitutional law course, where we also focused on these influential interpretations.

Though these interpretations are separate from each other, I believe to an extent each theory is dependent upon the validation of its’ counter-theory. Each interpretation views the Constitution and its’ interpreters in a different light. Each is, by my analysis, too radical a theory to be the sole interpretation that this country adheres to. Even Justice Scalia, believer of the first interpretation I will look at, “Originalism”, concedes the faults within his own logic. Justice Brennan’s idea of an expansive and powerful but limited government will contrast the originalist approach; Justice Rehnquist looks to the majority as the deciding body of what the Constitution says and scholar Ronald Dworkin introduces a counter-majoritarian dilemma to Rehnquist’s philosophy.

To begin, we must first decide what is a Constitution before we can successfully answer whose role it is to interpret that document. A Constitution, and to be specific the Constitution of the United States, by most accounts, is a blueprint for government and nation. It contains, in some ways, the rights of the government and, other ways, the rights of the citizen. It outlines the powers of each branch; the Legislature yields the power of the Purse, the Executive yields the power of the Military, and the Judiciary yields the power of its’ Reason. But it also limits the government in other areas, namely within the Bill of Rights. What government cannot impede on or take away from its’ citizens is outlined in the Amendments to the Constitution. In the Preamble, or the first sentences, the Constitution takes on the aspirational goals of our government, ensuring the general welfare and safety of its people while also maintaining their freedom.

The Constitution has proven itself to be equivocal. Many interpretations of the document have lead this country at various points in our history, and denying the Constitution the due credit of its equivocacy also denies it and its Framers the transcendence that has allowed the documents to last over two hundred years. If we were to say that the Constitution was unequivocal, it would not have stood the test of time. It lays the framework for our democratic republic; in such a form of government, disagreement and interpretation are necessary components. If we were to deny equivocacy to the very document that outlines equivocal practice, our nation, not just our government, would be unable to expand and adapt to the natural progression of change that prevails human history. Each of the interpretations outlined below assume that our Constitution is equivocal. What is important to remember when reading all of this is that none of these are concrete. Think of these interpretations (and a thousand others) as a four-quadrant graph; in one corner, you’ve got Justice Scalia and his bare-bones principles. In the opposing corner stands Justice Brennan, telling of powerful contemporary rule. And in the other two corners are Rehnquist and Dworkin, who contrast the others investment in the power of the American majority. Where you fall on this XYZ axis is entirely up to you. So now that we’ve gotten that out of the way, let’s go through these four interpretations.