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.