What is Constitutional Interpretation?: The Supreme Court has the difficult job of applying the U.S. Constitution to situations in today's world. Constitutional Interpretation is the specific way that judges understand the text of the Constitution - what they believe it means.
Each of the Supreme Court judges uses one of several different judicial philosophies when hearing and deciding controversial cases. Variations in the judges' philosophies have led to important split decisions in recent years.
For example:
In Stenberg v. Carhart (2000), the Court voted 5-4 to strike down
In Lee v. Weisman(1992), the Supreme Court decided, 5-4, that public school officials violated the First Amendment if they sponsored religious prayers at graduation ceremonies.
The Philosophies: This article will look at four basic philosophies, or methods, of constitutional interpretation:
Conservative:
- The Originalist Philosophy
- The Literalist Philosophy
Liberal: - The Modernist Philosophy
- The Instrumentalist Philosophy
The Originalist / Original Intent Philosophy: Originalists interpret the Constitution to mean what the framers intended it to mean when they wrote it. The Constitution is a legal document, they argue. It's a contract. It's original intent is everything. Originalists go to the Federalist Papers and other contemporary writings to understand the original meaning of the Constitution.
Originalists on the Supreme Court: Antonin Scalia and Clarence Thomas
The Literalist / Strict Constructionist Philosophy: Strict Constructionists read the law according to the literal definitions of the words involved. They do not try to infer the Framers' intent behind the words, but stick to the meanings of the actual words used.
Literalists on the Supreme Court: John Roberts and the late great William Rehnquist
The Modernist Philosophy: Modernists look at the Constitution as a "living" document. Its intents and purposes are free to change with the society it governs. Modernists argue that the Framers had no ability to foresee the various ways that future citizens might be oppressed. Judges have the responsibility to "fill in the gaps" to protect Americans from legislative tyranny by striking down laws that restrict fundamental human rights.
Instrumentalist Philosophy: Instrumentalists also see the Constitution as a living document. Instrumentalists try to apply the Constitution in the way that is most practical for contemporary society, regardless of the original intent of the document or strict definitions of its words.
Modernists/Instrumentalists on the Supreme Court: John Paul Stevens, David Hackett Souter, Ruth Bader Ginsburg and Stephen Breyer
Liberal Swipes: Modernists consider the Originalist approach too rigid. The overwhelming purpose of the Constitution, they argue, is to protect liberty. Judges can head off a potential crisis by dealing with "bad" laws quickly, rather than waiting for the long amendment process to bring about what they consider a needed change.
Conservative Parries: Originalists and Constitutional Constructionists contend that the Constitution is a legal document, and is meant to provide rigidity. That's what structure is all about. They believe that Modernists usurp power that belongs to Congress by legislating from the bench. Non-elected judges, they argue, should not be making moral or ethical decisions for the country. Those decisions should be made by the elected representatives in the Legislative Branch - who answer to the citizens.
Conclusion:
Let's say Betsy agrees to take care of Joe's tortoise under the condition that she keep it in a "cool" location - that is, a moderately cold spot away from her furnace. It would be unfair for Joe to later say, "Hey. You need to jazz up my tortoise's tank per the 'cool' clause of our agreement." It might be good for the tortoise to have a jazzed up tank, but that was not part of the bargain Joe and Betsy made.
The Constitution is a contract between the states and the
"If you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year;… if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask."
- Supreme Court Justice Antonin Scalia
