Why Interpreting the Constitution is so Complicated

Hi. Last week, I wrote an entry covering why the modern day interpretation and implementation of the Second Amendment to the Constitution is just so complicated. That was the first in what I hope to be a series discussing the difficulties interpreting and applying the Constitution in today's world. With the opening article done, I would like to take a few moments to introduce myself, what I hope to accomplish with this series, and why I believe the Constitution is so hard to interpret to begin with.

Introduction

First, I would like to say a little bit about myself. I am a law student at the University of Virginia. It is a wonderful school, and I hope to some day be a trial attorney focused in complex litigation. The law, as well as legal interpretation, excites me.

I am also very active in politics. I am a life-long Democrat, was an early supporter of Barack Obama for President, and believe functionalism is the correct way to interpret the Constitution. Much of my politics is based on a combination of both my own sense of morality, and the sense of morality instilled in me by my religion, Judaism. I believe ignoring poverty, doing nothing to ensure all people have health care, and destruction of the environment to be immoral acts. My politics often flows from those beliefs.

I introduce myself not to make a point, but merely to put my series in perspective. It is my hope that my personal viewpoints will not affect how I write this series, but you as a reader have a right to know some basics. I plan not to discuss what I personally believe, although you can probably guess from my politics. However, I do believe you have a right to know my politics, just in case you do think it seeps through to my writing.

The Purpose of this Series

So, if the purpose of my series is not to convince you of a viewpoint, what is its purpose? Well, my concern is not so much proving to you what is right. My concern is broader than that. In politics today, especially in Constitutional interpretation, too often people resort to sound bites and oversimplification. The result is that our country has become more and more polarized. No one is will to look at the other side of any issue.

Most people, on both sides of Constitutional issues, seem to believe that their side is obviously correct. They simply do not understand how the other side could be so wrong. As a result, the two sides look down on each other, and debate becomes poisoned with anger.

My hope is to slowly change this, at least with the small number of people who read what I write. My goal is not to convince you my perspective is right. In fact, as I stated above, I will avoid giving my perspective. My point is merely to help people on both sides understand why an issue that they think is so simple really is not. I hope to introduce the arguments on each side of an issue in a simple, understandable, and non-judgmental way. While I still leave it to you the reader to decide what you believe, my hope is that you will take away from each article I write the notion that 1) these controversial issues are not simple, and 2) those on the other side are not bad people looking to subvert the Constitution.

Why Is the Constitution so Hard to Interpret?

So, let us get to the crux of this introductory article. Just what is it that makes Constitutional interpretation so hard? Well, the real problem is, no one knows how the Constitution is supposed to be interpreted. In fact, no one even knows if there is a way that the Constitution is supposed to be interpreted, and how to even begin to figure out that way.

While there are many ways to interpret the Constitution, I focus on the four main methods: Textualism, Original Intent, Historical Context, and Functionalism. From left to right, that list tends to be from Conservative to Liberal, although that is not always true, as you will see. In the following few paragraphs, I will explain what each of these four methods actually are, why their supporters say they should be followed, and why their detractors say they should not be. As usual, the choice on how you want to interpret the Constitution is yours.

Textualism

Textualism is perhaps the most basic way to interpret the Constitution. It is how we interpret most laws in today's society. Textualism says you simply consider what is written, and nothing else. Past precedent, then, is entirely irrelevant. If the Supreme Court said something was constitutional in 1848 and a Textualist believes this was wrong, a Textualist is more than happy to support overturning the ruling, even after these 160 years. Similarly, if the Supreme Court said in 1830 that something was unconstitutional, and the Textualist believes this is in line with the text, then it is still unconstitutional today, no matter how outdated the ruling. Except for amendments, text does not change, and so Textualism is very rigid. On the Supreme Court today, Textualism is the preferred method of Justice Clarence Thomas.

Support: Most supporters first point out that we interpret laws this way. If this is good enough for laws, it should be good enough for our supreme law. Second, the moment we move away from the text, the argument is we go down a slippery slope where we give more and more power to judges to just change the Constitution, instead of following the prescribed methods. Finally, this makes sure we have one simple hallmark of law. No lawmakers have to guess what a court will say, they can just look at the text and know.

Detractors: Detractors argue that the argument by supporters is a pipe dream. Laws can be interpreted this way since laws can also be very easily changed. Laws also tend to be very clear. The Constitution is only 4,543 words (not counting amendments). This is, on average, about nine pages. Good luck finding a law that is only nine pages long, many are thousands of pages, meaning there is much more detail in there. Additionally, the meanings and definitions of words change over time, and it is foolish to think that the way we learn language does not affect how we read. Thus, Textualism also changes the Constitution. Finally, lawmakers would still have to keep guessing, since the Constitution is written in such an unclear manner that it must be interpreted.

Original Intent

Original Intent tends to be the most popular method of interpretation amongst conservatives. Original Intentionalists argue that basically Textualism should be followed, except where the meaning of the language is unclear. Wherever the meaning of the language is unclear, then, the intent of the authors of the Constitution or the Amendment should be ascertained and be used as the mechanism for interpretation. On the Supreme Court today, Original Intentionalism is the preferred method of Justices John Roberts and Samuel Alito. Justice Antonin Scalia also likes to use Original Intent, but mixes it with historical analysis.

Support: Supporters of Original Intentionalism argue that the Constitution gives us a mechanism to change it. This means that the Constitution itself does not change except when it is amended. This means following the text is best, since that is what tells us what the Constitution is, but Textualism is not enough, since much is left to interpretation. Instead, whenever the text is unclear, the intent of the authors tell us what the Constitution is supposed to mean, so that is what we should follow.

Detractors: Detractors argue that this is a deeply flawed approach. First of all, what authors are we supposed to listen to? Many authors of both the Constitution and the Amendments disagreed with each other. In fact, much of the Constitutions and the Amendments are compromises that no one who wrote them actually fully supported. As a result, what these authors intended cannot be what the Constitution should mean. Additionally, parts of the Constitution were left intentionally vague so that it could be adapted for future application. In other words, many detractors argue, the original intent of the framers was that we not use their original intent when interpreting the Constitution.

Historical Analysis

Historical Analysis is a step beyond Original Intent. The Historical Analysis viewpoint starts out with how the authors of the Constitution thought the Constitution should be read. It then also looks at what views of the Constitution has "withstood the test of time," and takes this into consideration in analysis. When having to choose between what a Constitutional provision probably meant originally or what that provision has been taken to mean over the history of the Republic, Historical Analysis goes for what the provision has been taken to mean. While Antonin Scalia, Anthony Kennedy, David Souter, Stephen Breyer, and John Paul Stevens occasionally use this perspective, no Supreme Court Justice today fully uses this has his or her approach to the Constitution.

Support: Supporters argue that this is the most logical way to interpret the Constitution. There is a mechanism to change the Constitution, so there is no need to deviate in a major way from the original writing. However, it does not make sense to rely solely on the viewpoints of people who wrote the Constitution before the Republic had taken shape to interpret its governing document. The thoughts on the Constitution developed by years of experience with the way the nation actually works provides very valuable insight on how the Constitution should be applied. Surely the Framers would not want us to apply the Constitution in a manner that would be destructive to our society, so interpretation that comes from experience and has survived the test of time must be taken into account.

Detractors: Detractors argue that this approach gives too much weight to precedent. If a case was wrongly decided 100 years ago, and no one wanted to change it out of fear of what would happen, it has not withstood the test of time, but historical analysis says we should not overturn it. This allows wrong ideas to be planted in the Constitution, and then makes them unchangeable short of the difficult process of amendment.

Functionalism

Functionalism looks at the Constitution as a blueprint for the nation. Blueprints have a certain set of ideas in them, but also can be changed in how it is applied to a building depending on conditions of the ground, and the area around it. Similarly, Functionalists argue the Constitution has many ideas in it, but its interpretation must be in tune with the times. As a result, many old decisions are considered outdated, and interpretations are regularly re-analyzed to see if those interpretations fit with the world we live in. For example, homosexuality was viewed as harmful as little as thirty years ago, and so its banning was deemed Constitutional. Today, people no longer view homosexuality as harmful, and so Functionalists argue that it is unconstitutional for it to be outlawed, even though many Framers themselves supported bans on homosexual conduct.

Support: Supporters argue that the Framers wrote a dynamic Constitution intentionally left short and vague so it could adapt to the times that it was interpreted in. True Original Intentionalists, then, would be Functionalists, since that is how the Framers meant the Constitution to be interpreted. It is a "living" document, changing to fit the needs of society. The amendment process is there not to change how the Constitution is applied, but how the ideas set forward by the Constitution themselves can be changed or added to. Additionally, sometimes explicit amendments must be added just to make sure certain things cannot happen. Otherwise, because the process is so rigid, an unchanging Constitution would make the country ungovernable.

Detractors: Functionalism is probably the most controversial method of Constitutional interpretation. Detractors argue that the above supports are absurd. The Framers may have meant the Constitution to be viewed in light of the times, but not actually changed, which Functionalism does. The Constitution is not alive, it is written down, and the amendment process is pointless if it can just be changed by judges. Finally, where does it stop? How do legislators know what is and is not unconstitutional? How does a country function when the Constitution can be changed at the drop of a hat by unelected judges?

Conclusion

So, I hope this has been a good introduction for you to why Constitutional analysis is so complicated. As you can see, all four major methods of Constitutional interpretation have good, logical reasons to follow them, and good, logical reasons not to. I will use these four perspectives in each of my articles. Sometimes an issue will depend entirely on which method you use, sometimes there is even uncertainty within the method (as with the Second Amendment). Whatever method you prefer is up to you, but I do hope you can now understand why some people may look at the Constitution a whole different way.