To arrive at desired meanings from an often ambiguous Constitution, various strains of political ideology and the federal courts have applied different conceptual modes to interpret the constitution. For the most part, those modes seem to be generally applied such that what the Constitution means turns out to be what the ideology of the interpreter needs it to mean. In other words, constitutional interpretation arguably is more subjective than objective. That can be seen as politicizing the meaning of the Constitution.
A March 15, 2018 paper by a Congressional Research Service attorney discusses the various modes of interpretation. The following are the the modes the paper discusses. The paper is intended to provide a general overview of the various arguments in support of, and in opposition to, the use of such modes of constitutional interpretation.
Textualism. Textualism is a mode of interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text.
Original Meaning. Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other responsible interpreters) is to construct this original meaning.
Judicial Precedent. The most commonly cited source of constitutional meaning is the Supreme Court’s prior decisions on questions of constitutional law. For most, if not all Justices, judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.
Pragmatism. Pragmatist approaches often involve the Court weighing or balancing the probable practical consequences of one interpretation of the Constitution against other interpretations. One flavor of pragmatism weighs the future costs and benefits of an interpretation to society or the political branches, selecting the interpretation that may lead to the perceived best outcome. Under another type of pragmatist approach, a court might consider the extent to which the judiciary could play a constructive role in deciding a question of constitutional law.
Moral Reasoning. This approach argues that certain moral concepts or ideals underlie some terms in the text of the Constitution (e.g., “equal protection” or “due process of law”), and that these concepts should inform judges’ interpretations of the Constitution.
National Identity (or “Ethos”). Judicial reasoning occasionally relies on the concept of a “national ethos,” which draws upon the distinct character and values of the American national identity and the nation’s institutions in order to elaborate on the Constitution’s meaning.
Structuralism. Another mode of constitutional interpretation draws inferences from the design of the Constitution: the relationships among the three branches of the federal government (commonly called separation of powers); the relationship between the federal and state governments (known as federalism); and the relationship between the government and the people.
Historical Practices. Prior decisions of the political branches, particularly their long-established, historical practices, are an important source of constitutional meaning. Courts have viewed historical practices as a source of the Constitution’s meaning in cases involving questions about the separation of powers, federalism, and individual rights, particularly when the text provides no clear answer.
Constitutional ambiguity: Some parts of the Constitution are mostly clear. For example age requirements and terms in office for members of congress and the President are not generally disputed, if at all. Other parts of the Constitution are ambiguous or even silent on important aspects of what the Constitution says or doesn't say.
For example, the paper described how the US Supreme Court got power to be the final decider of what is Constitutional and what isn't. The Founders could not decide the matter, so they left it ambiguous. The paper comments:
Early in the history of the United States, the Supreme Court began to exercise the power that it is most closely and famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison, the Supreme Court famously asserted and explained the foundations of its power to review the constitutionality of federal governmental action. During the two decades following its holding in Marbury, the Court decided additional cases that helped to establish its power to review the constitutionality of state governmental action. If a challenged governmental action is unconstitutional, the Court may strike it down, rendering it invalid. When performing the function of judicial review, the Court must necessarily ascertain the meaning of a given provision within the Constitution, often for the first time, before applying its interpretation of the Constitution to the particular governmental action under review.
That ambiguity reflected the deep, unresolvable disagreements among the Founding Fathers about where the power to decide constitutionality should reside. Given the ambiguity and social complexity, it is not clear than any one of the major modes of constitutional interpretation is necessarily universally authoritative or better than the others.
In view of increasing overt politicization of the federal judiciary, especially under President Trump and an extremist Republican Senate, it is reasonable to think that constitutional interpretation is going to increasingly conform to conservative Christian, pro-business and populist beliefs about what the Constitution means.
The questions all of this raises are mind boggling. Are federal judges morphing into nothing more than partisan politicians in black robes? Or, have they always been that way? Have they been that way in just the last 30 years or so? Should there be an accepted, authoritative mode of constitutional interpretation, or should federal judges and politicians have freedom to see what they want in the constitution? It is possible to establish a single mode of constitutional interpretation? Is it possible for our two-party political system to find and put ideologically less biased judges on the federal bench?
B&B orig: 11/24/18
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