In politics, we often complain about supreme court decisions and how they've expanded power or restricted progress, depending on which side you populate for a given issue. But there is a methodology employed by the justices that direct how they interpret the Constitution.

 

Needless to say, the depth of jurisprudence creates a wealth of philosophical distinctions and derivatives. If anyone wants to argue or discuss at such depth, that's great and I'm all for it, but I'm thinking it more productive to boil this down to Judicial Conservatism and Judicial Liberalism.

 

Judicial Conservatism is associated with the Textualist (rejecting non-textual sources), Originalist (closely related to Textualism, particularly Original Meaning) and Strict Constructionist (to construe the text strictly - often misapplied to Originalists, like Scalia). John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas are current Judicial Conservatives, mainly of the Originalist camp.

 

Judicial Liberalism is associated with the Living Constitutionalist (that the document has dynamic meaning, to flex with evolving society). Derivatives include the Pragmatist (appeals to anachronistic shortcomings), and those focused on Intent (belief that the founders actually intended such flexibility). Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor are current Living Constitutionalists. Elena Kagan has also claimed the Living Constitution method.

 

Judicial Moderacy is a mix of the two above, usually labeled as the swing vote. Anthony Kennedy and Sandra Day O'Connor are such.

 

 

 

Stephen Bryer has stated there are 6 tools used by justices:

 

1) The text itself

2) History of the statute or provision

3) The tradition that surrounds the words

4) Precedent

*5) Purpose or Value encoded in the statute

*6) Consequences of the ruling

 

5 and 6 are generally where the Living Constitutionalist and Originalist part ways. To the originalist, Purpose and Consequence are far too personal and subjective to weild without violating the separation of powers. They are instruments of legislative creation, which is supposed to be left to the Legislature and in part by the Executive. They appeal to the amendment process to update and evolve the document to match society's changing values and ethics.

 

Obviously, I definitely fall into the category of Judicial Conservatism. Namely, the Original Meaning. Original Intent is far too precarious and essentially employes the same subjective tools as Purpose and Consequence. This is a relatively new discovery for me.

 

In fact, I'm actually far more drawn to Strict Constructionism, however that only works if the document is written for strict interpretation - and as well all know, the Constitution is not written that way at all.

 

 

So, what about you guys? Does your preferred intrepretation methodology essentially match your ideological position? I believe it is possible to be a judicial conservative while maintaining a strong liberal preference in law. And vice versa.

 

 

Edit: Crap, I forgot to add the poll. Ah well...

Edited May 22, 201015 yr by ParanoiA

I'm going with the original meaning. Everything else is a recipe for disaster, allowing the constitution to be modified by unconstitutional methods.

Isn't the attempt to read the constitution and apply it "as originally intended" itself an act of interpretation and subject to personal bias and preference?

Isn't the attempt to read the constitution and apply it "as originally intended" itself an act of interpretation and subject to personal bias and preference?

 

Yes. That is exactly the same can of worms as purpose and consequence.

 

Original Meaning makes the least assumptions and draws on the least amount of subjectivity and personal bias to form conclusions about the text.

 

Of course, none of the methods, including Strict Constructionism can claim pure fidelity to its authors.

(N.B. Not being American, I understand if everything I say is automatically dismissed)

 

"as originally intended" doesn't sound workable to me.

 

For instance, if the question was whether people's "right to bare arms" should be limited to exclude rocket launchers: the right to bare arms doesn't place any explicit limitation on what "arms" actually means because at the time lots of weapons that exist today just hadn't been thought of - there is no original intent.

 

If the text doesn't give a really obvious answer, and having been written hundreds of years ago that's understandable, then that should be fixed. When the text does give a really obvious answer then that should be stuck to - that's why laws are committed to writing in the first place.

(N.B. Not being American, I understand if everything I say is automatically dismissed)

 

"as originally intended" doesn't sound workable to me.

 

For instance, if the question was whether people's "right to bare arms" should be limited to exclude rocket launchers: the right to bare arms doesn't place any explicit limitation on what "arms" actually means because at the time lots of weapons that exist today just hadn't been thought of - there is no original intent.

 

If the text doesn't give a really obvious answer, and having been written hundreds of years ago that's understandable, then that should be fixed. When the text does give a really obvious answer then that should be stuck to - that's why laws are committed to writing in the first place.

 

I'm sorry, I should have been more inclusive in how I established the thread. Nothing you say would be dismissed at all and we do share so much legal structure.

 

To your point, I completely agree. As Scalia put it, inferring "intent" or "original intent" misses the point of the limitations also built into that text. For instance, one could conclude that the "right to bear arms shall not be infringed" carried an intent to 'arm the citizenry' and therefore we must ensure citizens are armed - suggesting actively helping the citizens to arm themselves. But, of course, that ignores the qualitative text of "shall not be infringed", which limits the government to only staying out of the way, and that's quite a bit different.

 

That's not a great example actually, but that's the gist of his point. Purpose and Intent do not naturally contain limitations - yet the text itself does contain limitation. And that limitation is part of the law they passed. They didn't pass "intentions", they passed "laws".

poll added

Original Meaning makes the least assumptions and draws on the least amount of subjectivity and personal bias to form conclusions about the text.

Except, the foundation of the entire originalist approach is based on an assumption. They assume to understand the original meaning. They assume they know what the founders wanted. They may have some evidence in support of their assumptions, but their underlying premise is rooted in nothing more than assumptions when you get right down to it.

 

For that reason, subjectivity is inseparable from their position. That's basically the point I was making in my previous post.

 

 

Of course, none of the methods, including Strict Constructionism can claim pure fidelity to its authors.

Couldn't agree with you more on this point.

 

 

 

I voted "None of the above" in your poll, because I disagree with your basic premise. There is no one "proper method to interpret the constitution."

The thing is, the value of the Constitution is really hard to nail down. I think as far as constitutions go, it's a really good one, and it is impressive that was written in such a fashion that has maintained relevance as long as it has, and will continue to for a long time to come.

 

One of the things that made it such a good document in my opinion, is it was written at a time when the nation was as close to a blank slate as it could be. It's a very high minded document and was written in a very concise and precise manner.

 

The fact remains though, had it been written even a little differently, maintaining it with it's current level of integrity could have been disastrous. The ambiguity with regards to slavery contributed to the civil war. As it has been mentioned, issues such as which "arms" people have the right to bear has been subject to debate, and a lot of them didn't exist when the document was drafted.

 

I think of the primary benefits of the Constitution, is in that it is such a hard document to change. It adds a trans-generational continuity that counters the knee-jerk passing of laws that can cause immense instability where history is measured in decades, and politicians measure history in weeks.

 

So, I think that it needs to be difficult and time consuming to modify or reinterpret the Constitution, so it can represent a core body of laws and rights that curb the rate our nation changes over time, and counteract the volatility of campaign to campaign politicians.

It does need to be able to change though, and it's important that it's intent and interpretation is continually reconsidered, especially as it applies to new situations. Reinterpreting has the potential to cause radical shifts in law which should be avoided even in critical situations (since to politicians, "the present" is always the height of some drastic critical never before seen situation) so that it keeps the ability to provide smooth transitions instead of huge breaks in all but the rarest of historical moments.

 

It is a living document and needs to be, since it's just as fallible as anything else humans have ever put on paper, but it can't be seen as a document we can just hack around to suit the moment, or we invite volatility. It might be a complex way of saying something simple, I just am not sure how to say it better in a simpler fashion.