The problem of interpreting the Constitution and framer’s intent is a constantly permeating and troublesome question in the minds of Supreme Court Justices, judges, prominent politicians, and policy makers alike. It is a problem that has been pondered for years and years in the courtrooms and on paper with no real conclusion. One such essay arguing this dilemma is “How Not to Read the Constitution” by Laurence H. Tribe and Michael C. Dorf, who explore the questions “Is reading the text just a pretext for expressing the reader’s vision in the august, almost holy terms of constitutional law?” and “Is the Constitution simply a mirror in which one sees what one wants to see?” (Tribe, 49). While Tribe and Dorf begin their article with a seemingly unbiased opinion on the subject, by the end of the essay it is quite clear that the authors believe in the United States Constitution as a living document which is vulnerable to interpretation and changes with the times. There is much research citing evidence which both supports and argues against the idea that the Constitution can be freely interpreted to adjust to modern society. Neither of the two sides have very solid, concrete arguments. The supports are all very porous and can be easily attacked by the other side. Therefore, there is no right answer to the question of Constitutional interpretation.
In order to understand the topic at hand, one must first have a firm grasp on the original framing of the Constitution. The Constitution was written in a time of national turmoil. Bankruptcy and hunger were rampant throughout the country. The Articles of Confederation, written in 1781, proved to be a failure and the politicians were under a lot of pressure to create a functioning national government and a workable law for the land. The Articles of Confederation laid down some of the fundamentals of our national government, but still it had many flaws, such as an inability to regulate commerce and an inability to tax, among others (Scholastic Update, 2). The main players in the organizing and writing of the Constitution are Alexander Hamilton of New York, James Madison of Virginia, and George Washington. They believed in a stronger national government and Congress’ right to regulate trade. In response to Shay’s rebellion which consisted of farmers protesting taxes, a convention was called for by Madison and Hamilton to be held in Philadelphia in 1787. It was during this convention that the foundations for the Constitution were worked out. A completely new government was created and put on paper between May 25 and the final signing of the Constitution on September 17. The document was debated for sometime between Federalists and Anti-Federalists, but in December 1971 ten Bill of Rights were added to the Constitution in order to give rights to the citizens of the United States. This pleased both sides, and the Constitution was ratified (Scholastic Update, 4). The document produced from this convention has been the effective law of the land for over 200 years. “…out of the chaos of the 1780s emerged the Constitution, perhaps the most effective model of government ever devised. It was written by a small group of quarreling people under intense pressure. They knew how difficult their job was–and that what they had come up with wasn’t perfect. But they hoped they had created something that would be a living document for future generations” (Scholastic Update 2). The Constitution has been the center of many disputes as to how literally it should be read and followed.
There is much evidence available which can point to the conclusion that the Constitution should be seen as a living document. This means that lawmakers and judges can find solutions to modern problems by taking the standards of the original framers, and translating them into modern standards. “ [The framers] took the records and experiences of the colonial governments, the Continental Congress, the Articles of Confederation, and all the hopes and dreams of those early colonialists and forged and instrument based on individual freedom that is so vague and nebulous, yet so dynamic and flexible, it often is referred to as ‘a living thing’”(Rupert, 2). This “poetic license” can be a great benefit to modern society. The living document theory is an idea which is popularly supported by both political parties. This fact holds a lot of weight, because it is very rare to have such bipartisan agreement. Even in Tribe and Dorf’s essay, they state that “The belief that we must look beyond the specific views of the Framers to apply the Constitution to contemporary problems is not necessarily a ‘liberal’ position. Indeed, not even the most ‘conservative’ justices today believe in a jurisprudence of original intent that looks only to the Framers’ unenacted views about particular institutions or practices.” (Tribe, 49).
The vagueness of the original Constitution brings up a few issues concerning the legitimacy of the literal reading of the Constitution as it relates to modern times. Since the Constitution was written at a time so different and so distant from our own time, we have no way of truly knowing what the original understanding of the document was. The meetings that were held to write the Constitution were not well documented, so the discussions that went on between the framers are not known. This information would greatly aid in knowing the original understanding. Besides the generic realm of the original understanding of the Constitution, there are many specific issues which Tribe and Dorf point out in their article. “[The Constitution’s] Eighth Amendment prohibits the infliction of ‘cruel and unusual punishment,’ but gives no examples of permissible or impermissible punishments. Article IV requires that ‘[t]he United States shall guarantee to every State in this Union a Republican Form of Government,’ but attempts no definition of republican government. The Fourteenth Amendment proscribes state abridgments of the ‘privileges or immunities of citizens of the United States,’ but contains no catalog of privileges or immunities.” (Tribe, 48).
There are many issues presented to us today that the framers would never have been able to fathom. An example of this would be the recent controversies over the censoring of pornography over the Internet. The Internet is a medium for communication that was far beyond the realms of imagination only twenty years ago, so how could the framers of our Constitution possibly set any limits to freedom of speech over 200 years ago that would be applicable to this new form of speech? The answer is that they simply could not. This being the case, it is necessary for judges to be able to use the Constitution as a blueprint, and to make decisions based on good judgment, not on laid out specific rules.
Even with all of these proofs, one of the most solid pieces of evidence that leads to the conclusion that the Constitution should be used as a backbone for judges today is a direct quote once taken from James Madison stating that future generations will need to make “…useful alterations suggested by experience” (Scholastic Update, 4). One would figure that if this came from the mouth of one of the original framers, that it is the way it should be. It could mean that they purposefully made vague statements as mentioned above in order to allow for interpretation. This is not necessarily correct, though. There is also much evidence against this way of looking at the Constitution.
Some say that the Constitution should be taken very literally when relating to modern days. One of the forerunners of this idea is United States Supreme Court Justice Antonin Scalia. Justice Scalia has made many speeches and rulings following his belief that “…the U.S. Constitution is not a living document, changing with the times, but should be interpreted based only on the text as it was understood when it was written” (Singer A5). Justice Scalia is certainly not the only believer in this take on the Constitution, but he is one of the most prominent, modern, and not to mention vociferous opponents of the living Constitution.
One of the main arguments Scalia makes is that “…originalism has its imperfections, but when compared with the non-originalism alternatives, it comes out as a ‘lesser evil’” (Murphy 16). In this, he is simply stating that neither idea is fully flawless, but that after one weighs the pro’s and con’s of both sides, originalism comes out on top. There are a few arguments for original intent which would seem to point to this conclusion.
In 1845, Justice Joseph Story wrote “How easily men satisfy themselves that the Constitution is exactly what they wish it to be” (Tribe 50). This brings up a large piece of supporting evidence, which is also the biggest problem with Constitutional interpretation, and that is that most judges use the living document strategy to read their “own values and political judgments into the Constitution” (Murphy 13). “Nonoriginalist approaches are praised because they enable judges to expand upon individual liberty by divining rights that are only implicitly granted by the Constitution. To achieve this benefit, however, a judge must depart from the text and original understanding of the Constitution; having done so, there is no reason why a judge may not just as easily contract or restrict those rights that are explicitly specified and guaranteed by the Constitution” (Singer 14). Even by the definition of the word interpretation, it is in fact, making the Constitution exactly what one wants it to be. This can be a very dangerous power to put in a judge’s hand. Political Scientist Henry Jaffa writes “One would think … that when Paul Revere called out ‘The British are coming’ he meant they were coming to rescue us from French Philosophy” (Jaffa 38). This quote serves the purpose to show that there are no limits to how extreme “interpretation” can get; you just need a person who has an extreme imagination. In a speech at Washington University, Justice Scalia was quoted saying: “You want a right to abortion? It’s in there! You want a right to die? It’s in there! The only criterion, apparently, is what do we care passionately about”(Singer A5). “
If judges are given the right to interpret the Constitution as they please, this is insinuating that their opinion on what the Constitution is saying is better than the original framers; that in some way we are more enlightened in this day in age than they were over 200 years ago. In some ways this statement is very true. For example, we are more technologically advanced, much more politically correct, and we have had those 200 some years to look back on and see what mistakes were made. The only problem with all of this is that one would be assuming that things have gotten better since then, which is not necessarily a true statement. “[The idea that societies get better] is not the attitude of people who thought that we needed a Constitution in general and a Bill of Rights in particular. They understood that societies do not always get better and better. They can also rot” (Singer, A5). On the same note, who is to say that the morality of society has grown better? Tests of morality, such as abortion for example, would probably not have been within the moral compass of those who wrote the Constitution. Just because it is morally in lines with a few judges today who can make it legal, does that mean it is all right? This is a tough question to answer because if a judge is given the right to interpret the Constitution, he or she will eventually be forced to make a major moral decision. “Although nonoriginalist theories posit that the Constitution must evolve to reflect the changes in society’s ‘fundamental values,’ they cannot offer a principled distinction between those values that merit inclusion in the constitutional scheme and those that do not” (Murphy, 13).
One of the most fundamental supports for the originalism point of view is that there simply is not that often a reason to interpret the Constitution. The reason for this is because the original text of the Constitution, without interpretation, provides enough material to decide most cases. In its most basic form, the Constitution lays out all of the necessary components to make a just decision.
Both arguments are highly disputable because they each have their advantages and disadvantages. Neither side is “without it warts” as Justice Scalia is fond of saying (Singer 15). The non-originalist point of view is widely accepted in society, but that still does not mean that the originalist point of view is incorrect. Supporters of the living Constitution say that the Constitution is vague, but they just might not fully understand the original intent of the framers. Even though the framers could never comprehend modern issues and technology, the Constitution gives enough information to decide these cases. This is the main problem with the ongoing argument about whether or not, or how the Constitution should be interpreted. As one can see from above, there is a valid response against each argument. This topic will continue to be discussed for some time to come without resolve, until it eventually becomes invalid to even discuss it.