The US Constitution: How Should It Be Interpreted?

Hello All:

I've been noticing that in many of the US political threads in the senate, there has been an underlying theme of how laws should be interpreted, and the philosophies behind the passing of different types of laws.

So I'm going to start this thread. I would like this to be a discussion of the US Constitution, and how in today's modern world it should be interpreted.

I found a great website (go here) with some interesting information that summarizes the different views of how to interpret the constitution.

In brief, these are:

Originalism-just what it sounds like. Originalists maintain that the best way to implement the constitution was how the founding fathers intended it, by looking at their notes, their writings, the Federalist Papers, etc.

Modernism/Instrumentalism-This is the tried and true "living breathing constitution" theory; it states that as times change, so must the interpretation of the this document which has many deliberately vague points.

Historical Literalism-as rigid as it gets. This belief holds that only the words themselves may be used to interpret. It differs from originalism in that it discounts all writings in regard to the constitution, all opinions, etc, claiming that only the words on the paper interpreted in its' strictest sense can form the basis for legislation and jurisprudence. Most importantly, a historical literalist believes the Constitution should be interpreted using the 18th Century Definition of Its' Words

Contemporary Literalism-similar to the above, the contemporary literalist looks to the meanings of the words only, but ignores their historical significance. This philosophy defines the words by their 21st century meanings, not their 18th.

Democratic/Normative Reinforcement-This viewpoint, similar to modernist, is even more loose-sort of like the difference between the democrats and the Libertarians. This philosophy holds that the constitution is merely a skeletal framework, and that laws made today must take into account the feelings, passions, and prejudices of the majority, with the framer's intent as a secondary and underlying feeling. It maintains that even things like "due process" should be as broadly interpreted as possible and not viewed through 18th-century eyes.


Well, that's a summary. Obviously, there are many supporters of each viewpoint in this country (and all the others), and on these boards.

I am probably a modernist in that I believe the constitution should be flexibly interpreted with the times; I believe that the framework of the document is such that it can be interpreted (within reason) beyond the words as long as it is not a gross distortion of the framers' intent.

What does everybody else think? Which school of interpretative thought do you think best serves the country? Which is the best philosophy in a changing world?

Discuss.

Peace,

V-03

*Note* Mod Approved Thread

 

Hmm based on that list, I'd say that I'm closest to Originalism.

To me what is "living and breathing" about the Constitution is that it's open to changes via amendments.

The vague points of the Constitution do offer considerable room for interpretation, but for me the Modernist view holds too much up for interpretation, even when the words are specifically written on the page. (This refers to state constitutions as well.)

The Constitution is not only the Law, but it is the basis by which all other laws are written. If the interpretations become too lose, laws become meaningless because nothing means what it says, only what somebody believes it means.


EDIT: Excellent topic.

 

Well, the way I see it, the Constitution should be able to be interpreted broadly, but not the laws that come out of that broad interpretation.

I'm a Modernist/Instrumentalist. I feel that the Constitution should be able to broadly interpreted, so that the government can help the country in as many ways as possible. If we follow the Const. to the letter, the government won't really be able to do much, outside of taxing and defending the nation.

 

Originalism

 

Originalism-just what it sounds like. Originalists maintain that the best way to implement the constitution was how the founding fathers intended it, by looking at their notes, their writings, the Federalist Papers, etc.

Modernism/Instrumentalism-This is the tried and true "living breathing constitution" theory; it states that as times change, so must the interpretation of the this document which has many deliberately vague points.

I think these are the most viable means of interpretation. The original intent gives credence to the historical value of the writing. I think that originalism has a limited use when interpreting the Bill of Rights because many of the Ammendments have already been interpreted in a modern/liberal manner and once rights have been given, it is exceedingly difficult to take them away without backlash and politcal upheaval. Also, when dealing with intentionally vague Ammendments, it is best to apply the laws in a manner that "makes sense" in modern society.

However, I do believe that originalism does has a place in interpreting later Ammendments that have specific historical intent. For example, the 14th Ammendment guarantees the right of citizenship to all those born on US soil. The original intent of this Ammendment was to secure the citizenship rights of the newly freed slaves. The writers could not have forseen women illegally entering the country at 8 months 31 days pregnant to secure an American citizenship for their child and by extension immigration rights for themselves. I think in this case an originalist approach would work because the Ammendment was written with a specific remedy in mind and has been extended way beyond the original intent.

 

I would have to say Originalism, and here is why:

The Constitution is more than just a legal document. It is a set of ideals and principles that allow the government to function. As such, when disputes come up, how should you resolve them?

If you follow the exact wording, you are trapped in a rigid, inflexible situation that doesn't care about the best solution for the problem.

If you go for a "Broad" interpretation, then you can find ways to justify almost anything you want and the Constitution loses its significance.

However, if you look to the original ideals and intent behind the document, in addition to the words, you can then apply those principles to the situation.

To use an extreme example (please don't take this off topic), let's look at the Second Amendment under each of these systems of thought.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Historical Literalism would hold that only arms as they existed in the 18th century are covered by this amendment and that nothing else is protected.

Contemporary Literalism would seek to define "militia" by todays terms (such as the "militias" that exist to overthrow the US Government, or the National Guard/Reserves) and say that only the members of a militia should be allowed to bear arms.

Originalism would point to the principle of an armed populace both for protection against foreign threats and against the government itself (if needed).

Modernism/Instrumentalism would claim that (much like in the UK), society has grown beyond the need for everyone to bear arms, so there is no problem in limiting it a little (i.e. registration, etc.).

Democratic/Normative Reinforcement could hold that "arms" includes any form of weapon (up to and including nuclear weaponry) or that, if the People chose to impose restrictions on guns there would be no problem.

As you can see, these are only a few examples. (Please don't argue the exact points over gun control. There is another thread for that.) You could do the same with the First Amendment, or any other amendment you wanted.

The way I see it, Originalism maintains the balance between the rule of law provided by the Constitution and the need to adapt to modern times. The meanings of words may change, but the principles of good government never do.

Kimball Kinnison

 

I agree with Kimball 100%.

 

I would like to thank everyone for their well-thought out replies. There has been some truly original and stimulating thought here. Thanks Mr. Snerd!

Now, to stir things up a little ......

Well, the way I see it, the Constitution should be able to be interpreted broadly, but not the laws that come out of that broad interpretation.

I think this just about sums up my viewpoint exactly.

The way I see it, Originalism maintains the balance between the rule of law provided by the Constitution and the need to adapt to modern times. The meanings of words may change, but the principles of good government never do.

How would you exactly draw the line between originalism and modernism, then? Let me clarify what I mean:

I agree with a poster who said that it is exceedingly difficult to repeal rights once they are granted. My point here is that the legal grounds that we use to justify allowing or banning a specific act are just as important as the legality or illegality of the acts themselves.

For example (also not to go off topic): If abortion rights were to be repealed, I would have a lot less trouble if they were done so because abortion were to be legally defined as murder than if it were done so because the courts ruled that there was no right to privacy for americans. Such a ruling would open up the door for massive government intrusion into all aspects of life, and going by the originalist viewpoint, if it weren't specifically forbidden by the constitution, it would be permissible.

I guess what I'm saying is that while modernist viewpoints hold the danger of making the constitution meaningless through "too broad" an interpretation, originalism runs the risk of using the "mantra" of "strict constructionism" to validate oppressive or unfair laws. For instance, calling something a "states' right" just for the purpose of invalidating it, instead of actually sanctifying the law and demanding states take on the burden of regulating difficult issues.

I personally think this is a great topic (duh, I started the thread )...let's keep it going!

Peace,

V-03

 

Kimball: The problem with Orginalism is that you have to take everything in context of what a bunch of old dead guys would think. These same dead guys may or may not view the world in the same way we do, today. Hence, we're clinging to the past, and we're, to put it metaphorically trying to fight an enemy armed with machine guns with bows and arrows.

 

I think I'm a pragmatic originalist. The Constitution's place as a framework is clearly represented in the document and supporting contemporary literature/philosophy. In terms of setting the norms for 'good governance' and solidifying bedrock rights, Originalism seems to be the wisest course, in my eyes.

The pragmatism comes into play when our present world clearly create a situation where we might expect the intentions of the founding fathers to change....one example is the recent mess in NJ, where the Democratic party changed their candidate within 30-45(?) days of the election, which was against the State Constitution. However, that threshold was set in days where telephones did not even exist, and the logistics of changing candidates and informing the entire state enough to proceed with voting would have been impossible. I'm not as concerned with a modernist interpretation in cases such as these.


Normative Reinforcement is built into the US Constitution, through the Amendment Ratification procedure. They have, understandably, very high thresholds in order to become law, to represent how much political will has to be mustered by the people in order to affect lasting change.

 

If we're clinging to the past, Kuna, then we wouldn't have so many 'new' ammendments, would we? The Constitution has changed well enough to fit our needs for the day, and no alternations need be made now.

Anywho, I would be an Originalist, though I am not entirely rigid/literal on the meanings of the Constitution, I believe the forefathers had a lot of insight in how a democracy works and the things needed to keep it safe and secure for the public. In this case, the 'ruling' public. Looking at their memoirs, publications/writings and speechs, it's clear what they intended for this nation, and what a democracy needs to survive/protected.

And thanks to Kimball Kinnison for such a nice posting. Furthermore, it is clear the intentions of the 2nd amendment when reading the works of the founding fathers.

Ciou-See the Sig

 

First, just for everyone's reference, you can find a complete copy of the COnstitution here. I recommend that everyone take the time to reread it (or read it for the first time). It is truely educational.

Kimball: The problem with Orginalism is that you have to take everything in context of what a bunch of old dead guys would think. These same dead guys may or may not view the world in the same way we do, today. Hence, we're clinging to the past, and we're, to put it metaphorically trying to fight an enemy armed with machine guns with bows and arrows.

Again, as I pointed out, it is not just the opinions of "a bunch of old dead guys", but the principles that were behind those views.

For example, the Fourth Amendment protects us from unreasonable searches and seziures. In order to properly apply this amendment, you would need to find a definition of "unreasonable". By a Democratic/Normative Reinforcement, Modernism/Instrumentalism, or Contemporary Literalism view, you could suddenly decide that searching a suspected terrorist is not unreasonable. By a Historical Literalism view, unreasonable could only mean the sort of searches performed by the British soldiers. Only by taking an Originalist view do you really identify the principle that the Fourth Amendment is based on: that the government does not have the authority to search unless they have clear evidence of wrongdoing.

Or, to use another example, we can look at Article I, Section 8:

The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

There has recently been a rather large debate over the meaning of "limited times". By some views, as long as it is not infinite, it is constitutional. By other views, our current policy (life of the author plus 70 years or 95 years for works by a corporate author) extends beyond a "limited time". I believe that by an Originalist view, the principle behind this is to allow authors/inventors to profit from their work for a time and then allow the public in general to profit from it.

It is the principle behind the law that is most important, not the wording itself. When you focus on the words only, you begin the search for loopholes. Principles don't have loopholes.

Kimball Kinnison

EDIT: I want to respond to one other item.

How would you exactly draw the line between originalism and modernism, then?

I am a very principle-centered person. By this, I mean that I believe that it is not rules but the principles behind the rules that are important. The story that helped me develop this view comes from my Church's history.

I have many ancestors among the Mormon Pioneers. Before they went west, they had built the town of Nauvoo, Illinois (where mobs forced them to leave in 1846). In the 1840s, Nauvoo was the largest city in the state, larger even than Chicago. In 1843, a reporter asked Joseph Smith (leader of the Church and the mayor of Nauvoo) how he managed to govern so many people so well. His response was, "I teach them correct principles and they govern themselves."

To me, Originalism is looking at the underlying principles behind the wording of the Constitution. Modernism would simply reinterpret the meaning to define new principles.

KK

 

I don't understand the concept of originalism.

Isn't it a little insulting to the documents writers if we try to interperet their wishes? I mean, isn't it more than possible that if they were alive today - with all the social progress and change we've had - that they'd feel the same way about things? We're applying a mode of thinking that is hundreds of years old to modern society, and it just doesn't work.

I'd prefer to just take it literally. It isn't a book, or a reference manual, but a legal document. Legal documents should not have fluid interperetation, as that can lead to their abuse.

- Scarlet.

 

Literally according to the 18th century dictionary, or the 21st century word definitions?


Colour me surprised...I had you pegged as a believer in democratic/normative reinforcement in a case such as this.

 

Oh, literal interperetation using THEIR dictionary. It would just be silly to use ours. Like, take the Establishment Clause - that could be totally misinterpereted if we took a different view of the word 'respect.'

I say literal because if we try and take their intentions, it relies entirely on guesswork, with little evidence. It also allows the Constitution to be altered depending on who is interpereting it. That's a very... insecure legal document.

- Scarlet.

 

It's obvious that a definitive legal framework is better than an ambiguous one. A definitive document can be changed to reflect new issues if need; an ambiguous one can be--would be--miserably abused. It could be interpreted in any number of different ways by different people with different agendas.

It's not a simple task to derive the exact intentions of the Founders as far as the Constitution is concerned, because some people invariably go in trying to find specific interpretations. It's difficult to settle on definitive meanings for all the points.

However, by interpreting a 18th-century document using the 21st-century English language and 21st-century precepts, we open the door to an incredible multitude of different meanings and interpretations. Personally, I believe that this way is so prone to abuse that it's wiser to attempt to interpret the spirit of the Constitution, what the Founders meant to say, and then amend the document as necessary to meet the times.
If we instead simply abuse the Constitution by using liberal (in the non-political sense) interpretations, the entire document will only grow more and more ambiguous with time.
It's better to take the time to make the proper changes using the proper methods than to ignore the definitive legal framework and interpretation which allows a judicial system to operate as uniformly as possible.

 

Interesting point, Starfire.

I like what Kinnison in his last post, that the principles are there to protect our freedoms but at the same time to prevent rule by the mob, whose passions and leanings change over time with whomever comprises it.

It is the principle behind the law that is most important, not the wording itself. When you focus on the words only, you begin the search for loopholes. Principles don't have loopholes.

Let me ask you this then...how would you apply the Ninth and Tenth Amendments in cases where unreasonable searches and seizures were unclear. Forgive me for beating a dead horse, but going back to abortion rights, some legal experts feel that forcing a woman to carry an unplanned pregnancy constitutes an illegal seizure of her body by the state, ie she has been coerced without due process to engage in an activity against her will.

As an originalist, would you be able to say that the right to privacy, although unenumerated, falls under the ninth or tenth amendments (since it is not forbidden by the constitution). Is making that kind of a stretch proper for originalist thinking, or does it fit more into modernism/normatism?

Let me put it to you another way: if numerous court precedents over time "interpreted" or "granted" an unenumerated right, would originalist thinking accept it if it fell under what was considered to be the framers' original intent? Or would they rail against it, and call it conjured?

This is where my problem lies. Call me a liberal, but the ninth amendment pretty clearly says to me that if the government chooses to recognize a right, and it's not specifically forbidden, than it's US law-and the argument that it isn't because it's not written down is moot. It would seem to me that by placing the legal groundwork for such a right within the scope of the ninth amendment, the courts would have stuck with the framers' intent (at least on procedure), and that would be make it 'kosher'.

Now, I'm sure there are flaws in my thinking, so anybody please feel free to elucidate them for me.

Thanks.

Peace,

V-03

 

I would say that I am closest to an originalist view. Here is a link that you may find useful. National Constitution Center

 

Most of the interpretations have a problem or two inherent in them:


Modernism/Instrumentalism - This is the tried and true "living breathing constitution" theory; it states that as times change, so must the interpretation of the this document which has many deliberately vague points.

This interpretation is incomplete because, while it says the document's interpretation must change, it gives no hint as to what DIRECTION the change must point. As I've said before, a document that can mean anything ceases to mean anything in particular.


Historical Literalism - as rigid as it gets. This belief holds that only the words themselves may be used to interpret. It differs from originalism in that it discounts all writings in regard to the constitution, all opinions, etc, claiming that only the words on the paper interpreted in its' strictest sense can form the basis for legislation and jurisprudence. Most importantly, a historical literalist believes the Constitution should be interpreted using the 18th Century Definition of Its' Words

First, as a matter of principle, this seems inconsistent in that it STILL relies on external works - namely, the contemporary dictionaries.

Second, it begs the question: if the dictionaries disagree with each other, which do we use? Common dictionaries or technical dictionaries used by lawyers? The most popular, the last published, or the ones actually on the Founding Fathers' desks?


Contemporary Literalism combines the problems of both Modernism and Historical Literalism.

Normative Reinforcement merely exacerbates the problems of Modernism.

Because of the problems of the alternatives, I choose Originalism.

 

Interesting thought, Bubba...so yours is a choice of exclusion.

I would say that truly all of them open the document to interpretation, or at least some degree of "conjuring"

For instance, liberals are often called "activists" for "making up" laws from "broadly" interpretating the constitution, saying that something exists that isn't there.

But I also have found that conservatives do the same thing, oftentimes by regulating something and then saying that the edict(s) it supposedly violates is not found in the constitution, and therefore does not exist.

Seems rather narrow-minded to me on both sides.

But you are right, there are problems in all of them....

Peace,

V-03

 

For example, the 14th Ammendment guarantees the right of citizenship to all those born on US soil. The original intent of this Ammendment was to secure the citizenship rights of the newly freed slaves. The writers could not have forseen women illegally entering the country at 8 months 31 days pregnant to secure an American citizenship for their child and by extension immigration rights for themselves. I think in this case an originalist approach would work because the Ammendment was written with a specific remedy in mind and has been extended way beyond the original intent.

Wait a minute... are you saying we should interpret this part of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

to somehow mean that some persons born in the United States are not citizens? If we can use Originalism - or anything else - to say that the Constitution says something other than what the actual words say, how can I be guaranteed of anything? The First Amendment says I have freedom of religion, but if someone decides that the original authors never intended someone to be able to deny the existence of God, do I no longer have the freedom to be an atheist?


Because of the problems of the alternatives, I choose Originalism.

Are you saying Originalism has no such problems, or just that they aren't as bad as the others?

 

Originalism isn't as bad as the others.

 

Moriate: If we're clinging to the past, Kuna, then we wouldn't have so many 'new' ammendments, would we? The Constitution has changed well enough to fit our needs for the day, and no alternations need be made now.

The thing is, we want to pass laws, not amendments. Constitutional amendments take a lot more time because they have to go through each state individually for approval, IIRC.

Kimball_Kinnison:
Again, as I pointed out, it is not just the opinions of "a bunch of old dead guys", but the principles that were behind those views.

For example, the Fourth Amendment protects us from unreasonable searches and seziures. In order to properly apply this amendment, you would need to find a definition of "unreasonable". By a Democratic/Normative Reinforcement, Modernism/Instrumentalism, or Contemporary Literalism view, you could suddenly decide that searching a suspected terrorist is not unreasonable. By a Historical Literalism view, unreasonable could only mean the sort of searches performed by the British soldiers. Only by taking an Originalist view do you really identify the principle that the Fourth Amendment is based on: that the government does not have the authority to search unless they have clear evidence of wrongdoing.

Or, to use another example, we can look at Article I, Section 8:
The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
There has recently been a rather large debate over the meaning of "limited times". By some views, as long as it is not infinite, it is constitutional. By other views, our current policy (life of the author plus 70 years or 95 years for works by a corporate author) extends beyond a "limited time". I believe that by an Originalist view, the principle behind this is to allow authors/inventors to profit from their work for a time and then allow the public in general to profit from it.

It is the principle behind the law that is most important, not the wording itself. When you focus on the words only, you begin the search for loopholes. Principles don't have loopholes.

I see. You make your point very clear.

If I understand you correctly, the Constitution intentionally poses the questions of "What does this mean?" and "Whose judgement should we use to define it?" You're saying that we should use the Constitution's authors' definitions, right?

If so, my questions are such: Are you sure we should use their definitions? Wasn't the Constitution supposed to be able to adapt to the changing times? Thus, one might reason that the defintions/interpretations would adapt as well.

For example, "separate but equal" was deemed constitutional in 1896 (Plessy vs. Fergusson) but unconstitutional in 1954 (Brown vs. Board of Education). The Constitution itself hasn't changed, but something else about it obviously has. Might that "something else" be the way we (or rather, the Supreme Court) interpreted it?

 

Wait a minute... are you saying we should interpret this part of the 14th Amendment:


All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.


to somehow mean that some persons born in the United States are not citizens?



Yep, that is exactly what I meant. The 13th, 14th, and 15th Ammendments were ratified to rectify the the slavery issue. The 14th Ammendment was intended to secure the citizenship rights of the newly freed slaves because they had previously been thought of as property. That was the original[/i] intent of the law. There was no intent to give citizenship to whoever could make it accross the border in time to plop out a baby.

I understand what you are saying, however. My remedy would be to ammend the Ammendment (by making a new ammendement) and lay out citizenship rights more specifically rather than re-interpreting the words that can clearly be taken only one way.

 

If so, my questions are such: Are you sure we should use their definitions? Wasn't the Constitution supposed to be able to adapt to the changing times? Thus, one might reason that the defintions/interpretations would adapt as well.

Actually, I would argue against using their definitions. The framers could not possibly have imagined the social, economic, and political changes that advances in technology and globalization have brought. Without adaption in interpretation, the US would be hopelessly stuck in the past, not to mention well behind the times.


Peace,

V-03