The Constitution emerged after several months of debate in 1787, during which the Founders sought to "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty." Several centuries have passed since the Constitution was formed, and in the intervening time, multiple questions and debates have arisen over its meaning and interpretation.
There are two main categories of constitutional interpretation: Originalism and Non-Originalism. These two categories are admittedly broad. But in general terms, the first seeks to interpret the Constitution by looking closely at the text, the influencing documents and the historical context in which it was written. The second looks at the Constitution as a living document the interpretation of which needs to take into account changes in social norms, economic and political circumstances.
According to one proponent, Originalism "means that the constant touchstone of constitutional law should be the purposes and values of those who had the authority to make the Constitution—not of those who are charged with governing under it and abiding by it." An oft-cited variation of Originalism is Strict Constructionism, which focuses interpretation on the technical, exact meaning of the words in the Constitution. Past and present examples of justices who hold the Originalist view include Justice Hugo Black, Justice Antonin Scalia, Justice Clarence Thomas, and Judge Robert Bork.
Non-Originalism, on the other hand, is sometimes referred to as Loose Constructionism or Pragmatism, and its proponents often support the idea of a "'living constitution' … [which] evolves, changes over time, and adapts to new circumstances." Past and present examples of justices who hold this view include Justice Harry Blackmun, Justice William Brennan, Justice William O. Douglas, and Judge Richard Posner.
The first debates over proper constitutional interpretation arose among the Founders themselves. In 1788, while the Constitution was awaiting ratification, Alexander Hamilton stated that the interpretation of the Constitution was to be left in the hands of the courts. Nearly 30 years later, James Madison noted the bias that was possible in interpreting the Constitution, both for those present during its formation, like himself, and for those removed from the process, but eager "to find in its text an authority for a particular measure of great apparent Utility." Finally, Thomas Jefferson weighed in on constitutional interpretation methods with the following statement:
"On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
In the years following the Founding generation, the courts and other constitutional scholars continued to approach constitutional interpretation with caution. For example, Joseph Story's Commentaries on the Constitution suggested that Americans interpret the Constitution in a straightforward, rational manner while cautiously appealing to the Founders' contemporary context in matters lacking clarity. Additionally, court cases such as Pollack v. Farmers’ Loan and Trust Co. (1895), South Carolina v. United States (1905), and Ex Parte Grossman (1925) all cited the need to look into the historical circumstances surrounding the Founding Fathers in order to make accurate judgments.
However, as the 20th century advanced, the idea that the Constitution needed to be interpreted in light of the nation's changing times and circumstances began to take precedence in the Court system. Chief Justice Earl Warren put this concept into words in 1958 when he stated, "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Justice William Brennan championed this idea as well by declaring that it was "arrogance" to say that modern justices could know what the Founders intended, therefore the Constitution should be interpreted according to the changing ideas of different generations. In the eyes of current Supreme Court Justice Elena Kagan, this type of constitutional interpretation demanded that "the courts show a special solicitude for the despised and disadvantaged."
Due to these developments in the judicial review process, the types of judges nominated to the court system are increasingly scrutinized concerning their constitutional viewpoints. Unfortunately, Originalist vs. Non-Originalist constitutional interpretation has come to be viewed largely along ideological lines, with Conservatives generally advocating for an Originalist position and Progressives advocating for a Non-Originalist position.
The material in this topic traces the historical methods of constitutional interpretation from the era of the Founding to the present. It examines the various forms of constitutional interpretation today while also presenting the arguments for and against each one.
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