Constitutional Interpretation: Final Thoughts

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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

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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.

Constitutional Interpretation: Originalism and Contemporary Ratification

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Before his death, the late Justice Antonin Scalia was the considered the most conservative Justice on the Court. His method of interpreting the Constitution, called Originalism, is proof of that claim. Scalia prefaces his argument with the assertion that, “…originalism is not, and had perhaps never been, the sole method of constitutional exegesis.” (231) Originalism, at its most basic comprehension, is the belief that in order to interpret the Constitution, one must apply the Framer’s intent. We are bound to the original intentions of the Founding Father who sculpted our Constitution and we are bound to interpret it as they would. Original intent, he claims, is the most beneficial interpretation; it requires putting yourself in the time, context, and minds of the Framers. This requires an “enormous mass of material” (233); ratifying debates, notes, books, an evaluation of reliable materials used as consult at the time, a political and intellectual atmosphere, even down to assuming the beliefs, philosophies, and principles that guided each individual Framer. Sounds hard, right? It is, and necessarily so. Original intent is not a defect of originalism; it is the feature. Scalia insisted that this is the proper interpretation because it does not require the need for constitutional guarantees to ensure that its laws will reflect the current values of the time. (234) In other words, we don’t need to check the Constitution every time we make a new law because we are already abiding by it in the most literal approach.

Yet even Scalia admits originalism is not the end of the debate. The chief concerns of originalism are justified; that it’s a strong medicine to take that requires great and careful consideration and a trained mind to successfully interpret, leading to many false interpretations of the theory. But the chief defect, he points out, is that it may be more appropriate for the given task it is applied to. Rather than being a defect with the theory, the defect lies within applying whatever task stands before the Constitution. So, if there was a law that does not adhere to Originalism, it isn’t the fault of Originalism but rather the fault of those trying to apply Originalism to that law. If that law cannot pass the original intent test, it is unconstitutional. Among Scalia’s concessions, he fails to acknowledge the inconceivable evolution of society. Scalia argued, “I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging. But then I cannot imagine such a case’s arising either.” That itself is a concession in the fault of originalism; the inconceivable is not accounted for in such a theory. One can argue that, for example, a right to privacy is outlined in several Amendments of the Bill of Rights and that we should interpret our right to privacy as a guarantee. However, I argue that the Framers may very well have believed in a right to privacy…but I don’t believe the Framers could fathom a global broadband network that instantly connects most of the human race, preserving all your personal information and the entire history of our species. And that is only after explaining what a “photograph,” “display,” and “audio file” are. These would be unfathomable to men and women who lived nearly 250 years ago and that is the problem. Because it is the unfathomable that tests the strength and resilience of our Constitution against time. And Originalism does not account for the unfathomable, even when it tries to.

Justice Brennan offers an entirely different theory. He believes that the Framers are not what bind us to the Constitution because the Framers could not conceive of the issues testing our nation a hundred years or more ahead of them. The Founders purposely included these broad, vague, noble principles for future generations to interpret; according to Brennan, the Constitution is an aspirational text full of values we should be striving toward. Values such as social justice and human dignity run throughout the Constitution and should not be overshadowed. Rather, we are bound to the traditions and aspirations that preceded us since the Founding. Brennan argues that it is impossible to put yourself fully in the shoes of the Framers because doing so would require one to abandon the principles and moral judgment one has lived with their entire life. Doing so is not an easy task, as Scalia pointed out. But I do find myself agreeing with Brennan slightly more. I don’t believe there is a way to properly let go of all your judgment and moral compassing to become fully immersed in the shoes of another…not to mention, another from over 200 years ago. Because exactly what you are doing is imagining. Imagination rightfully anchors us to our own aspirations and ideals, and as such we do read into the text what we want to find.

But Brennan also believes that the Constitution is not blueprint limiting government; it is instead a public text of our aspirations for this country in the contemporary society. “…Because ours is a government of the people’s elected representatives, substantive value choices should by and large be left to them. This view emphasizes not the transcendent historical authority of the framers but the predominant contemporary authority of the elected branches of government.” (238) Effectively, Brennan is suggesting that the nature our democratic republic necessarily requires a reading of the Constitution that is contemporary. The nature of our democracy elects the persons who best represent the ideas and goals of the people. Take gay marriage as an example; it is, I believe, safe to assume that a candidate running for President in 2016 will not be elected by the majority if s/he does not support or believe in same-sex marriages.

Scalia argues that if our Constitution no longer at any time meets the exigencies of society’s evolving standards, and an Amendment is required, there is nothing stopping the people or elected representatives from doing so in a proper and democratic manner. Brennan pushes that of course we look to the text and the intervening history for interpretation; but when that is unavailable to us, we must ask what the Constitution means in our own time. The problem I have with Brennan’s theory is that it makes space for far more fault than benefit. Following this interpretation leads to contemporary implementation, but also allows for an expansive government that prioritizes current societal trends over the protected rights of the people and the states outlined in the Bill of Rights.

Understanding Constitutional Interpretation

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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.

The Death of the Conservative Movement (and why Liberals should care)

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As I’m sure most of you have heard, Antonin Scalia, Justice to the United States Supreme Court and the most conservative individual on the Court, passed away this Valentine’s Day weekend. FOX reported that his death came from natural causes, while The New York Times held back any declaration of the same. Scalia was known for his creative, eloquent, often hyperbolic Opinions and Dissents; most recently, declaring the Court’s decision to uphold a key component to the Affordable Care Act’s nationwide coverage an act of “jiggery-pokery.” Scalia was 79.

His method of governing was rooted in a self-devised form of interpreting the Constitution he called Originalism. In it, he believed (as with most conservatives) the People and their Institution should govern solely on the original intent of the Founders. If it wasn’t in the Constitution, the Government shouldn’t do it was his mentality. Scalia believed that in order to most correctly interpret the founding document, one must place themselves in the mind of the Founders. Obviously, being over 200 years removed from its ratification, interpreting in such a way would be a feat. He would contend that this was to the benefit of the country, rather than simply a handicap. His critics often berated that to think someone in the 21st Century could truly place themselves in the mindset of a late 18th Century Founder is arrogant at best and destructive to democracy at worst. Yet, even Scalia conceded that Originalism cannot be the sole method of interpretation; he believed it required an opposing and, sometimes radical, new approach. That approach has often been Justice Brennan’s contemporary ratification; the idea that the Constitution lives and breathes with the times. That the text of the Constitution moves closely with the progress of a changing and growing society. Brennan’s argument is very much alive in today’s society and ever more so in the minds of the youth, whose progressive ideologies have shaped discussions of race, law enforcement, climate change, privacy, and capitalism. Originalism, however, died this weekend.

Make no mistake, Barack Obama, in the final year of his presidency, will do everything in his power to appoint a new Justice to the Court. Should he succeed, the new member will likely be a moderate at least and a liberal at most. The new member would be the third appointee by President Obama, making him the first president since Ronald Reagan to achieve three. It’s often said that the last seven years have been the Obama Era, but that notion is short sighted. The Obama Era will begin with the confirmation of his (presumably) final Supreme Court appointment. The appointment will have a tremendous impact on the future of the country. This will be the first Court in recent history to be dominated by liberal Justices, a third of whom will be directly linked to the work of Obama.

Liberals are, of course, salivating at the possibilities; at first, I was, too. After years of supporting and defending President Obama’s record, tonight I saw the possibility of his work continuing into the next 40 years. Issues of abortion, marriage equality, climate change, education, campaign finance, and wealth inequality could be addressed in a new, more progressive manner. I’ll admit, I’m excited to see what this new Court will hand down- specifically on the matters of climate change and wealth distribution. Finally, I thought, we might see real progress in the work to combat global warming.

But I soon realized exactly what Scalia’s death symbolized. In a time where society is ever more progressive by the passing day, our laws have yet to catch up. But part of the new problem before us is that is how it’s supposed to be. Our laws cannot withstand time when they are changing in step with society. It’s only when society, as a whole, agrees upon a specific issue that law can and should reflect it. Take Roe v. Wade, the decision legalizing abortion across the country. We recently passed the fortieth anniversary of that decision. It was radical, and one that is still highly contested across the country. Are we a pro-life nation? Or are we pro-choice? By law, we’re pro-choice. But does that reflect the wishes of our entire society, or simply a very small majority? I venture to believe the latter. The Court’s sweeping decision in Roe had not reflected the wishes of a strong majority of the nation, which is why abortion remains (and will remain) one of if not the most controversial topics in politics. I’ve personally watched relationships end over this single issue.

But the Court has also ushered in substantial change, most notably the Civil Rights Movement. Had the Court not handed down the decision in Brown v. Board of Education to desegregate schools across the country and assimilate blacks in to the rest of society, where we would be? Likely, set back decades from where we are today.

What’s important to realize about Scalia’s work is, for however dated and sometimes asinine his beliefs were, he was one of the last men anchoring us to the Constitution. For every decision that was passed down during his tenure, Scalia was the most prominent voice screaming, “We cannot forget what the Founders intended.” Despite society and the politics of late (read: the presidency’s of Bill Clinton and Barack Obama) clamoring that we must change and adapt, Scalia was the voice of, “Not all the time.” He may not have halted the Liberal agenda in ways he and many others would have liked, but he constantly reminded us of where we came from and why we were doing what we were doing and how we were doing it.

Conservatives across the country will mourn this loss for some time to come, but that’s a given. I think it’s more important that liberals mourn alongside them. For it was Scalia who halted progress in the name of principle. It was Scalia who showed us the value of remaining true to our heritage; a heritage of great principle, understanding the precedence of every action and reaction we made as a single, sovereign voice. His hyperbolic, hyperventilating nature reminded us of the possibilities of our actions. With his last-century Italian stubbornness, Antonin Scalia reminded us where we came from. And now, that voice is forever silent.

I think, now more than ever, it’s important for our nation to reflect on the end of the Conservative Movement, not because it’s an election year, but because it’s a new beginning for the Liberal Movement. An uncharted and foggy future lies ahead with this new Court, and soon, we may no longer see the lighthouse we called home that guided our every action.

Update: A previous version of this post said Roe v. Wade was fifty years old, rather than forty.