Constitutional provisions have force and effect only as they are interpreted and applied. Although, both the Executive and Legislative Branches of government interpret the constitution as they perform their assigned functions, for over 200 years since Chief Justice John Marshall issued the decision for the Supreme Court in Marbury v. Madison (1803), it is the Judiciary that has the last word on the subject.
Because our Constitution in many respects is written in broad strokes and general phrases, there is often great debate among judges and scolars about how a particular provision should be interpreted in any particular circumstance. Whether the protagonists of any particular constitutional issue know it or not, choosing a proper method of interpretation is generally at the core of their debate. Often, the answer that is derived for a constitutional question depends upon the method of interpretation that prevails.
Choosing the proper method of constitutional interpretation is in fact one of the most controversial subjects there is in constitutional law. Applicants for the High Court are grilled about the subject by Senators during the judicial selection process, and what answer is considered correct depends entirely upon which political party is in control at the moment.
Although variations of each method exist, there are essentially three modes of constitutional interpretation, Originalism, Textualism, and Living Constitutionalism. I will not hide the fact that I have a personal and professional opinion regarding which method is correct -- I prefer Textualism. But, in these essays I would like to discuss each method in turn, and leave it to you to make your own decision which method you deem best. Let’s begin with Originalism.
Both Originalism and Textualism proceed initially from the basic premise that because our Constitution is a written document, it is the written word, viewed individually and in context with the whole writing, that is the most important. Adherents to both Originalism and Textualism believe that because we have a Constitution that was written by real men who, within the context of their time, plainly meant something when they wrote the document, those who make, interpret and enforce the law ought to be guided by the meaning intended when the document was originally written.
Those who support Originalism champion it for a number of reasons. They believe it “comports with the nature of a [written] constitution, which binds and limits any one generation from ruling according to the passion of the times.” They believe that it supports the concept of government accountable to the people. They believe that the framers designed the Constitution to contain an amendment process so that the people, who the framers thought could be trusted over the long-haul of time, would correct their own errors.
Finally, they believe that Originalism places appropriate limits upon the Judiciary. It prevents the Judiciary from asserting its will upon the other constitutionally created institutions, charged with making policy, and each accountable in various ways to the people. And, they believe that it protects the people’s role in the democratic process.
How is Originalism applied? Someone applying Originalism will start with the words of the Constitutional text, and the evident meaning of the words. They will look to the lexicon of the time when the text was written, and consider the context of other constitutional provisions. They will consider the meaning according to the framer who wrote or suggested the particular language at issue. They will consider the debate regarding the contested provision or concept in the Constitutional Convention, the ratification debates such as the Federalist Papers, or debates in Congress depending upon what is appropriate.
They will consider the historical meaning and understanding of the words at the time they were written. They will consider the words in the context of the social, political, and economic events of the times. They will consider the subsequent historical practice of the founding generation, and evidence of long-standing traditions that demonstrate the people’s understanding of the words. They will of course consider and apply, consistent with principles of stare decisis, past Court decisions interpreting the words or provision.
The goal of all this? To give the constitutional text the meaning that it was originally intended to have, which is a meaning independent of the personal view of the judge deciding the present case.
Chief Justice John Marshall often employed the language and logic of Originalism in his opinions. In Ogden v. Saunders (1827), Chief Justice Marshall wrote in dissent:
“To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; -- is to repeat what has been already said more at large, and is all that can be necessary.”
It has been written that Marshall’s manner of dissecting text, “seeking its place in the coherent context of the document, buttressed by the understanding of those who drafted it and the generally applicable legal principles of the time are exemplified in his classic opinions in Marbury, McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Barron v. Baltimore (1833).” Hamilton and Jefferson also demonstrated a use of Originalism. In modern times, Justice Clarence Thomas appears to be a practitioner of Originalism.
In the end, Originalists believe that if the Constitution contains only square pegs, judges may not force them into the round holes of the various social contentions that arise in such a diverse society as ours. They believe that constitutional change is to proceed principally from the people through the amendment process. They believe that absent a firm originalistic textual framework for interpreting and applying the Constitution, we are destined as Aristotle warned, to fall into the mere “rule of men” -- judges.
Tomorrow . . . Textualism.