U.S. Constitution For Dummies
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Chief Justice Charles Evans Hughes famously remarked that, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our property under the Constitution.” The Chief Justice was right to point out that the meaning of the Constitution keeps changing as a result of judicial interpretation and reinterpretation, without any change in the words on paper.

Changing the Constitution

Hughes was not criticizing the courts for this process but was actually praising them. Not everyone would agree with this view. Here are some of the reasons for opposing judicial changes to the Constitution:
  • Article V of the Constitution makes it clear that the only way that the Constitution can be changed is by formal amendment, which requires a two-thirds majority in both houses of Congress and ratification by three-fourths of the state legislatures.
  • The Framers deliberately made amendment difficult, so that any change would command broad general support.
  • The Supreme Court justices are unelected, are appointed for life, and are removable only by impeachment. This means that the justices are independent and not answerable to the electorate or to anybody else.
  • Supreme Court justices who interpret the Constitution in ways that depart from the text are effectively rewriting that document by imposing their own views on it.
The reply to these points is along the following lines:
  • The Constitution was mostly written more than 200 years ago. It’s impossible to get back to the original intention of the Framers — even if we wanted to.
  • To remain relevant and meaningful, the Constitution must be interpreted afresh by each new generation, as a “living Constitution.”
  • This process of interpretation in the light of changing political, social, and moral values doesn’t amount to unauthorized amendment but is needed to make sense of the Constitution and to apply it to the modern age.

Identifying methods of interpretation

The classification of the different schools of constitutional interpretation is messy, to say the least. But here’s a bird’s-eye view of the main divisions:
  • Living Constitution: This school of thought sees the Constitution as a living and breathing document that must be interpreted and reinterpreted according to society’s changing needs. On the present Supreme Court, Justices Breyer, Ginsburg, Kagan, and Sotomayor generally adhere to this approach. As Justice Breyer puts it, the Constitution’s values don’t change, but they “must be applied to a world that changes every five minutes.” And: “George Washington did not know about the Internet, but he did know about free speech. And the values of free speech have to apply to today’s world that includes an Internet.” The late Justice Antonin Scalia attacked this approach as undemocratic by wanting “matters to be decided not by the people, but by the justices of the Supreme Court.”
  • Strict constructionism: This label is used to refer to a literal approach to constitutional interpretation. Thomas Jefferson favored this approach, which took a narrow view of the powers of the federal government as against the states. Chief Justice William Rehnquist was often described as a strict constructionist, as are Justices Clarence Thomas and Scalia. Scalia rejected the label. “Strict constructionism,” explained Scalia, “is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be — though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

Scalia went on to provide an illuminating example from the criminal case of Smith v. United States (1993). The question before the Supreme Court was whether Mr. Smith had “used” a firearm in the course of committing a drug-related crime. Smith had wished to buy some cocaine, for which he had offered an unloaded gun in payment. Did this amount to “using” a gun in connection with the drug trafficking offense? The majority on the Court, made up of six justices, were satisfied that it did. Scalia dissented and explained his dissent as follows: “The phrase ‘uses a gun’ fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. When you ask someone ‘Do you use a cane?’ you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.”

  • Textualism: Judges who are referred to by politicians and the media as strict constructionists nowadays tend to prefer to be regarded as textualists, formalists, or originalists. These labels are not identical, but they overlap to a considerable extent. Originalism is essentially an approach to the Constitution, while textualism is concerned with other legislation. So, there is no contradiction between being both a textualist and an originalist. Scalia referred to himself as “first of all a textualist, and secondly an originalist.”

Textualists are also often regarded as conservatives (check out Figure 3-1 for a picture of liberal and conservative justices), but there is some confusion here. Conservative judges normally have a certain reverence for stare decisis — the doctrine of binding precedent, that courts should adhere to previous decisions. But what should a textualist do when his reading of the Constitution disagrees with a previous Supreme Court decision? In those circumstances, some of them, like Thomas, tend to jettison stare decisis. Scalia is on record as remarking: “Clarence Thomas doesn’t believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right. I wouldn’t do that.”

  • Originalism: This term is now applied to several different shades of legal opinion, which share the view that the Constitution had a clear and definite meaning at the time it was drafted and that to interpret the Constitution, a court must get back to that original meaning.

Justice Neil Gorsuch, a Trump appointee who took his seat in April 2017, has been described as a textualist in statutory interpretation and an originalist in regard to constitutional interpretation. He is also known to be an advocate of natural law, having written his Oxford doctoral dissertation on assisted suicide and euthanasia (he is against both). In Gorsuch’s first criminal case as a Supreme Court Justice, his vote tipped the scales against eight death row inmates from Arkansas who were petitioning the Court for a stay of execution in McGehee v. Hutchinson (2017). Gorsuch wasn’t swayed by Justice Breyer’s impassioned plea in support of a stay of execution on the ground that “Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire.”

The most influential branch of this school of thought, claiming adherents such as Scalia, stresses original meaning at the expense of original intent — the meaning of the text as it would have been understood by a reasonable person at the time it was drafted, rather than some secret purpose that the Framers may have had. Critics of this approach have pooh-poohed as unrealistic the attempt to recapture the meaning of a text as it was understood more than 200 years ago.

The sight of judges beating one another over the head with old dictionaries can be entertaining. In 1994, Scalia, relying on a raft of dictionaries, ruled that the word modify meant no more than “to make minor changes.” He rejected the argument, based on Webster’s Third New International Dictionary published in 1976, that modify could also refer to the making of major or fundamental changes.

If this is the sort of mess a court can get into on the basis of word meanings of the late 20th century, how easy can it be to reach the original meaning of texts drafted in the late 18th century? Interpreting the Constitution on the basis of its meaning at the time it was written sure makes sense. The problem may be that none of the high court justices were trained as a historian, a linguist, or a philologist.

constitution-liberal Source: Steve Petteway, photographer for the Supreme Court of the United States

(From left to right) Justices Sandra Day O’Connor (retired), Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan, October 2010. The three current justices are all thought of as “liberal,” while O’Connor, nominated by President Reagan and starting out as essentially “conservative,” later became the swing vote on the Court.

About This Article

This article is from the book:

About the book author:

As a lawyer who consults with various U.S. firms on constitutional issues and as author of a text on British constitutional law, Dr. Michael Arnheim is uniquely qualified to present an unbiased view of the U.S. Constitution, what it says, what it means, and how it's been interpreted in a variety of situations.

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