INTERPRETING THE CONSTITUTION- CONSTITUTION OF THE UNITED STATES

The success of the Constitution lies in its flexibility. But it is flexible because it speaks in broad and sometimes murky phrases. What, for example, does “due process” mean? The Constitution does not define the term. If a judge’s salary consists in part of fines he hands out against traffic violators in his court, has due process been violated? (Yes, said the Court in Tumey v. Ohio in 1927, because it is unfair to give a judge a monetary incentive to find people guilty.) The ambiguity of the Constitution means that it cannot be applied automatically, and that its provisions must be subject to judicial interpretation.

For more than two centuries justices, scholars, and people on the street have debated the proper method of interpreting the Constitution. Advocates have sparred over several contrasting approaches: strict, or narrow, versus broad construction (interpretation); conservative versus liberal; interpretivist versus noninterpretivist; and activist versus nonactivist. In general this is a debate between those who believe that the wording of Constitution should be read narrowly and those who argue that in many instances the words themselves provide no guide to the outcome of a case.

These different approaches can lead to different outcomes. The abortion decision Roe v. Wade is an example of a broad reading; strict constructionists find no right to abortion. Decisions upholding the death penalty exemplify strict readings; only a broad reading would render capital punishment unconstitutional.

No single method has found favor. Moreover, these labels are misleading and not always consistent. Although strict constructionists are often politically conservative, they need not be. Justice Hugo L. Black, who served on the Supreme Court from 1937 to 1971, adhered to a strict constructionist approach. He argued that only if a right was mentioned should it be observed. But this view led him to a very broad and liberal interpretation of freedom of speech; he insisted that even obscene works should be permitted. The First Amendment, he declared, means just what it says: The government shall make no law against freedom of speech. By contrast, some judges wish to give the government broad power to curb speech, a conservative position perhaps, but not a strict one. On the other hand, Black dissented in Griswold v. Connecticut, the birth-control case, insisting that no matter how silly the law was, the Constitution contains no right of privacy and the judges ought not invent one—not a liberal position, but a strict one. By contrast, several usually conservative judges discerned a privacy right in the due process clause, interpreting the Constitution liberally and not strictly.

In recent years a somewhat different debate has arisen over whether the Constitution should be interpreted according to the framers’ intent. Those who favor the so-called original intent of the framers argue that the Constitution must still mean what those who wrote it meant in 1787. If the framers intended that the death penalty be used, they argue, then it cannot be unconstitutional.

This approach has several difficulties. First, the historical record is far from clear about what they meant by many constitutional phrases. Second, in many important cases today, it is impossible to know what the framers intended because the modern world was unknown to them. They never conceived of television. How, then, could they have had an intent about whether rules regulating cable television violate the First Amendment? Third, whose intent should we look to? The framers did not agree on all the issues. Indeed, their disagreements led them to write the Constitution in words that have many possible meanings. Moreover, if the key is intent, then perhaps we should look instead at the intent of those who ratified the Constitution, for it was they who chose to put it into operation. But how can anyone determine the single intent of hundreds of people who chanced to come together in state ratifying conventions and did not leave records? Fourth, referring to original intent makes sense only if the framers themselves intended that later generations do so. But there is no evidence that they wished future citizens to do so. In addition, the Constitution does not say how its meaning should be interpreted. Fifth, the framers might have intended for later generations to interpret the constitutional text broadly, in light of the novel problems that would undoubtedly arise in later eras. It is this last approach that has often won. Regardless of theory, there can be no doubt that the meaning of the Constitution often changes with the times.