The Constitution: Why Interpretation Matters

Throughout our nation's history the constitution has been the one stable legal doctrine binding us together as one, and conversely dividing us as well. Throughout time, and as the years since ratification have continued to pass, a debate has emerged. This discussion has centered around how in fact to treat and read the constitution. Should it be taken at face value, with judges attempting to determine the meaning of the law, and not the legislators intent? Or should the constitution be treated as a living breathing document, subject to an open interpretation that could potentially make it more adaptable to resolve the constantly changing problems faced by our society? This debate has spawned several questions that are extremely relevant today. Some of the queries include: Is there a reasonable argument to be made that the text of this document was broadly written to encourage adaptability, or not?  What are the ramifications of both perspectives, and does one side of the argument make more sense as more time has passed? Is there a restriction or elimination of rights by interpreting the constitution as a "living document" or, by viewing the text as historically immobile, does the country fail to address its new issues by utilizing a "stagnant" document? Finally, what interpretation, will serve the best interests of the up and coming generation in the future, as the courts begins to deals with 21st century issues.

One one side of this argument, championed by Antonin Scalia, is the need for a textualist reading of the constitution. Textualism is:

A formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquires into non-textual sources such as the intention of the legislator in passing the law, the problem it was intended to remedy, or substantive questions of the justices and the rectitude of the law.

This form of interpretation takes the letter of the law and injects a careful amount of reason into it. In the book A Matter of Interpretation: Federal Courts and the Law by Justice Antonin Scalia he defines his brand of textualism as:

To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designed, or could be designed, to serve; or to hidebound to realize that new times require new laws. One need only to hold the belief that judges have no authority to pursue those broader purposes or write those new laws. (P.23)

In other words, Scalia is arguing, that a textualist interpretation of the constitution should be focused on the meaning of the statute not the unsaid intention of the legislators. Scalia reasons that by adhering to the letter of law displayed before him there is a higher degree of consistency in judicial rulings. The arbitrariness, sometimes associated with court rulings, will be kept to a minimum and a closer adherence to precedent will result, thus strengthening the law which our country follows. This preferred choice of interpretation has been followed by other justices as well. Justice Holmes said, "Only a day or two ago-when counsel talked of the intentions of the legislature, I was indiscreet enough to say I don't care what their intentions was. I only want to know what the words mean." (P.22-23) However, one must question whether this interpretive practice is the most logical for legal interpretation. Are there no other factors that need to be accounted for? Would taking into account the legislative intent be wholly corruptible to statute interpretation? Finally, since the issues faced by the first Supreme Court are so radically different than those faced by today's court, could a reasonable person postulate that the constitution does not in fact contain language to address every new issue that arises?

Justice Scalia acknowledged these questions, and also whole heartily rebuked them as well. He argues that being a textualist is the only possible way to balance these competing demands on interpreting law. Scalia also emphasizes within his essay that, "Textualism should not be confused with so-called strict constructionism." (P.23) However, within his wording, he does leave the door open for the allowance of the text to be construed to some degree. Scalia wrote,

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. (P.23)

Although Justice Scalia defends the practice of textualism, as the preferred method of constitutional interpretation, he seems to be retracting on his own legal philosophy. The necessity for equating some amount of intent, either legislative or other, to calculate the appropriate amount a text should be construed, appears to be inconsistent with textualism as a whole. Furthermore, an argument can be made that recognizing, and understanding, the intent of legislators would help to better interpret the law when it is called into question. If I for example, received instructions from my employer to complete a task, I and my employer are better served if I also know the intent of his instructions. By only knowing half of the possible information I might only do half of what he wants. Taking into account the intent, as well as the meaning of a statute, seems to only better serve the public as a whole. While this reasoning might at face value appear to have some validity, Scalia and the textualist philosophy disagree.

Justice Scalia laid out his position opposing the incorporation of legislative intent very clearly when he wrote in his essay,

My view that the objective indication of the words, rather that the intent of the legislature, is what constitutes the law leads me, of course, to the conclusion that legislative history should not be used as an authoritative indication of a statutes meaning. (P.30)

Textualists, championed through Justice Scalia's essay, lay out precisely why this form of interpretation is dangerous, unreliable, and destined to create numerous unintended consequences. One of the first reasons for rejecting legislative history, by Scalia, is that "extensive use of legislative history in this country dates only from about the 1940's." (P.30) Furthermore, due to this unexpected inclusion of this new form of evidence when arguing cases, "we have developed a legal culture in which lawyers routinely--and I mean routinely--make no distinction between words in the text of a statute and words in its legislative history." (P.31) Justice Scalia also argues that the use of legislative history, especially in current times, is nonsensical for the simple fact that the intent of law by the legislatures themselves is commonly not known. So for the court to take into account the legislative intent/history, while the legislators themselves are ignorant of it, simply results in a gross mistake in the court's judgement. Scalia supports this claim in his essay when he wrote,

The floor is rarely crowded for a debate, the members generally being occupied with committee business and reporting to the floor only when a quorum call is demanded or a vote is to be taken. And as for committee reports, it is not even certain that members of the issuing committees have found time to read them..."(P.32)

While Scalia's assertions seem to make the argument for textualism valid, the history of the courts decisions seem to point to other factors that are important for interpretation. A Justice that approaches the issue of interpretation differently is a man named Stephen Breyer. Justice Breyer. In his book title, Active Liberty: Interpreting Our Democratic Constitution, he wrote,

As history has made clear, the original Constitution was insufficient. It did not include a majority of the nation within its "democratic community." It took a civil war and eighty years of racial segregation before the slaves and their decedents could begin to think of the constitution as theirs. Nor did women receive the right to vote until 1920. the "people" had to amend the Constitution, not only to extend its democratic base but also to expand more fully to secure basic individual (modern) liberty. But the original document sowed the democratic seed. (P.32-33)

Within this passage Justice Breyer is recognizing the constitution's ability for adaptation through constitutional amendments. But what if this "perfect form of government" fails to be functional? In that scenario what recourse is there for active liberty, when the minority has no voice? Is there a recourse for such groups, and how does the interpretation of the constitution, and the judicial philosophy of judges help or hurt the progression of our country's law and policies. Would the lack of action by the government, like now, permit the more expansive use of judicial policy making by judges?

 Illustrating Justice Breyer's more expansive view on constitutional interpretation that occurred before his time, is the landmark case Griswold v. Connecticut. 


This is an interesting case to examine because it highlights how these two opposing views of constitutional interpretation began to fundamentally disagree. The case revolved around the legal question of whether a Connecticut state law forbidding the use of contraceptives "violated the right of marital privacy which is with the penumbra of specific guarantees of the Bill of Rights."  However, since there is no explicit clause, sentence, phrase, or amendment stating that such a right to privacy exists what is a Justice to do? According to a textualist, the clear answer would be to apply the law or lack of law according to the written Constitution before him or her. The following video by justice Scalia illustrates his reasoning on the topic.

In accordance with the textualist philosophy, the only clear answer would be that since no such right to privacy exists then no such right can me construed from the language of the text. But, is this not in conflict with the other basic rights Americans are entitled to under the constitution? Under other amendments there seems to be an explicit intent for privacy, because without a certain degree of privacy these other rights might become moot. Would the notion that a important right, such as privacy, be an implied right by other constitutional amendments? This was the thought process of the majority in that case, and it set an important precedent.

While in many Supreme Court cases, the language of the statue is clear and their opinions are only needed as a confirmation/clarification for the rest of the judicial system. These two opposing judicial philosophies discussed here today are usually only significant when there is ambiguity in the law, or when the issue before the court is without precedent. An article by the New York Times made a note of this under appreciated judicial harmony. Additionally, the article noted that disagreement only regularly occurs if the cases that go beyond the normal "letter of the law."

There have been no dissents in more than 60 percent of the 46 cases decided so far this term. At this point last year, the justices were unanimous just 48 percent of the time according to the statistics compiled by Scotusblog. In the two terms before that, 52 percent of the cases decided by now were unanimous.

So this is where the real crux of the debate lies. Simply stated, what judicial interpretive method is better for our country and our constitution? In my opinion, the essence of textualism is in fact a good thing. This is because interpreting law cannot be a subjective process where biases, maliciousness, and discriminatory beliefs are the standard to which judgements are made. However, it is not the only necessary component to substantive and comprehensive judicial interpretation. Justice Breyer's recognition that the "original constitution was insufficient" is not a condemnation of our founding fathers, but a recognition of mankind's inability of attaining perfection. I believe that clutching until the last breath, to only the text of a document is not just irresponsible but dangerous. Frequently, the literal translation of any text does not in fact meet all of the author's intentions for the reader. A passage of almost any book can mean almost anything depending on who and how a persons "reads" it. The intent of the author is what guides a reader to the true meaning of the words on the paper. The medium of written language is beautiful but also restricting. Once pen meets paper, and words are written, the evolution of the thought abruptly ends. Punctuation places an arbitrary conclusion to ideas and the intangible intent of those words are restricted to the interpretation that letters give to thoughts.  We rarely ever run an idea, no matter the level of our intelligence, to its conclusion. What is driving these ever evolving ideas is the intent which initially bore them out of our minds. So with this understanding, is not unreasonable to take into account, the intent of the authors of statues, when deciding difficult and ambiguous cases. Without acknowledging the intent and/or implied rights, the ability for a woman to choose what she may or may not want to do with her body, or whether a married couple could choose to take contraceptives would not exist. Another example of where textualism has had difficulty defending a commonsensical approach to constitutional interpretation, in my opinion, has been concerning the meaning of the 2nd Amendment. The second amendment as written in the constitution says, "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."

A textualist, like Justice Scalia, will look at this amendment and see the answer to whether citizens can own "Arms" quite clearly. However, the textualist also seemingly ignore the other three quarters of the amendment and fail to place this amendment within the context of the modern United States. Justice Breyer's views on this topic illustrate an opposite but important perspective.

 First the right to keep and bear arms was predicated on the recognition, in 1787, that it was essential to the success of "a well regulated militia." However in 2014 there are no militias. The closest organization representing any sort of "state militia" would be a National Guard unit. But even if these these National Guard units were commonly accepted as today's equivalent of a state militia, are the members of the National Guard expected to provide their own firearms? Is each National Guard member required to purchase an M-16 A2 assault rifle? Obviously the answer is no. Each member of the National Guard is issued a weapon by the government, and that weapon is not kept by the National Guardsman, but instead it is stored on a military base within a secure building called an armory, where only a select number of people have access to it. So if those facts are true, and a textualist interpretation of the Amendment could possibly mean that unless someone was part of the state militia (National Guard) then said person has no right to "keep and bears arms?" Because was not the main point of the 2nd Amendment national defense, and not self-defense?

A recent case in 2008 District of Columbia v. Heller put this question of differentiating national defense and self-defense in front of the Supreme Court in regards to the meaning of the 2nd amendment. In the court's majority opinion, written by none other than Justice Scalia, he reasoned that, "The second Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purpose, such as self-defense within the home." Interestingly a few years later Justice Scalia did an interview where he consented that there could in fact be limitations on what and who could bear arms. This juxtaposition of ideas illustrates the problems that a textualist interpretation of the Constitution can have.

However, what if a different form of interpretation was applied to this amendment? Would the resulting interpretation mean that no American in any state could own a firearm? I suppose that if taken to the extreme this could indeed happen, but it does not have to be. Firstly, this amendment has to be placed within the context of the times. In 1787 the "arms" were single shot muskets that were inaccurate and slow to reload. Now private gun owners can purchase full blown assault rifles that fire large caliber rounds extremely fast, and can also be aided by a variety of scopes and sights. With the slue of mass shootings where the perpetrators used assault rifles, could a reasonable person interpret the Constitution to mean that the authors of the 2nd amendment do not intend for this particular right to be extended so drastically? There have been other cases where the court has recognized the dramatic change in technology and has applied the law accordingly. Most notably are cases regarding the 4th amendment. In 1787 when our constitution was ratified there were no telephones, Internet, thermal scanners, airplanes, drones, or global positioning satellites (GPS). Yet the court has recognized that utilizing these devices does in fact violate a person's right to privacy and unresonable searches and seizures. While these specific technologies were not implicitly mentioned, the court reasonably took into account the founding father's intent and balanced the protection of citizen's rights, with the meaning of the Constitution in modern times.

So why has there been such a push back about applying this same standard of common sense to the 2nd amendment? How could one misconstrue an amendment aimed at expanding national defense and instead promoting it as "self-defense?" Each group, whether pro-gun control or anti-gun control, will both use the text of the 2nd amendment to help argue their position. However, as the millennial generation comes to age, casts their votes, runs for office, and becomes supreme court justices, how will we in fact react to these changing times? And how will our generation's judges interpret the Constitution? The answers to these questions will be a result of how one deems the correct way of interpreting our constitution. Many of us have lived a life where rapid change on any variety of things is now the status quo. We have accepted the fact that when we buy a new phone, T.V, or computer, we will only have the latest model for about 6 seconds. Change is what has defined our generation. Whether it is U.S foreign policy, attitudes on social issues, domestic politics, or even what is important in life, we have all seen how each of these items change, stabilize, and without fail change again. With these experiences, a future Justice from our generation, might one day sit on the bench and approach interpretation somewhat differently than his or her predecessors. His or her focus,  cognizant of the change that sweeps our world so often, will be on interpreting the constitution within the context of the times.

While all societies need a strong foundation to build upon, we should not look to the foundation as a limit to how far we can grow and adapt. Our foundation is the Constitution. It has laid out the rights that we as citizens are entitled to. It has provided the instructions as to how our government should be run, and it has been a document that has bound us together as one country. However, at the end of the day it is still a document written 227 years ago. The only way for it to survive and remain relevant is being able to adapt to the needs of the people that follow it. This underlying point is why interpretation matters so much. If only applying the words of this document, without the intent of its authors, to the important cases facing the court today, the hope for a peaceful resolution is not likely. While serving as a U.S Marine an often cited mantra was "adapt or die." The Constitution can maintain its important foundation, but if it is not interpreted to fit the times then perhaps one day we as a country might just ignore it altogether.

Works Cited:

"Antonin Scalia." Wikipedia. Wikimedia Foundation, 27 Feb. 2014. Web. 02 Mar. 2014.

"Textualism." Wikipedia. Wikimedia Foundation, 22 July 2013. Web. 27 Feb. 2014.

Scalia, Antonin, and Amy Gutmann. A Matter of Interpretation: Federal Courts and the Law: An Essay. Princeton, NJ: Princeton UP, 1997. Print.

"Home - Supreme Court of the United States." Home - Supreme Court of the United States. N.p., n.d. Web. 1 Mar. 2014.

Breyer, Stephen G. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005. Print.

"Griswold v. Connecticut." LII / Legal Information Institute. N.p., n.d. Web. 03 Mar. 2014.

"Supreme Court Justice Says 'Right to Privacy Not in Constitution'" YouTube. YouTube, 01 Aug. 2012. Web. 04 Mar. 2014.

Liptak, Adam. "Justices Agree to Agree, at Least for the Moment." The New York Times. The New York Times, 27 May 2013. Web. 03 Mar. 2014.

"Justice Breyer on 2nd Amendment: If You Live in DC & Like Shooting Guns You Can Go to Maryland." YouTube. YouTube, 12 Dec. 2010. Web. 05 Mar. 2014.

"District of Columbia v. Heller – Case Brief Summary." Lawnix Free Case Briefs RSS. N.p., n.d. Web. 03 Mar. 2014.

"Gun Control - Supreme Court Justice Scalia." YouTube. YouTube, 06 Jan. 2013. Web. 05 Mar. 2014.