How judges and justices interpret
the
U.S. constitutions and laws
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Interpretation of the U.S. Constitution and federal/state legislation:
Generally speaking, there are two main ways
in which court justices and judges interpret laws and constitutions:
As living documents: The document's meaning is continually
evolving to meet changing cultural beliefs, practices, and knowledge.
This has been the position of most of the justices of the U.S. Supreme Court in recent decades. It is
also the
viewpoint used by the Supreme Court of Canada and similar high courts of
many other western countries. Justice Scalia attacked what he called this "conventional fallacy"
in which the meaning of the constitution is interpreted: "...from age to age [as]
whatever the society (or perhaps the Court) thinks it ought to mean."
1 A Focus on the Family news report
in 2006-FEB said that Justice Scalia:
"...sharply criticized those who say
the U.S. Constitution should be interpreted as a 'living document' -- one
that should change with the times. According to the Associated Press,
Scalia told a gathering of the Federalist Society ... 'you would have to be an idiot to believe that. The Constitution
is not a living organism, it is a legal document,' he said. 'It says
something and doesn't say other things'."
One example of the living document philosophy is found
In Trop v. Dulles (1958). The U.S. Supreme Court court discussed the evolution
over time of the
meaning of the "cruel and unusual punishment" clause in the U.S.
Constitution's Eighth Amendment. The Court had earlier recognized
that: "the words of the Amendment are not precise...and that
their...scope is not static.. They stated in Trop v. Dulles that
"The Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society."
In recent years,
some Justices of the U.S. Supreme Court have gone outside American society and have
incorporated references to cultural developments in other
Western countries in their rulings. 2 In 2002,, the U.S. Supreme Court ruled
in Atkins v. Virginia that the execution of
mentally retarded murderers is cruel and unusual punishment and is thus
unconstitutional under the Eight Amendment to the U.S. Constitution. Amnesty
International commented:
"The Atkins ruling overturned a 1989 decision, Penry v. Lynaugh, by
finding that 'standards of decency' in the USA had evolved in the
intervening years to the point at which a 'national consensus' had
emerged against such executions � primarily reflected in state-level
legislation banning the execution of the mentally retarded. From an
international human rights perspective, an encouraging footnote attached
to the Atkins opinion acknowledged that 'within the world community, the
imposition of the death penalty for crimes committed by mentally
retarded offenders is overwhelmingly disapproved'."
10
As an enduring document: Justice Scalia, and other conservative
Justices on the Supreme Court, agree with this position. They are often referred to as strict
constructionists or originalists. They interpret a legal document as meaning
"today not what current society (much less the Court) thinks it ought to
mean, but what it meant when it was adopted." 3 Viewing the Bill of Rights and the rest of the U.S.
Constitution as an enduring document means that the justices consider the
society's values and the authors' intent during the era in which the text was
actually written. When the original U.S. Constitution was written:
Women
were excluded from many professions.
Women were denied the right to vote or
run for office.
Bruce Hausknecht, spokesperson for the Fundamentalist Christian group for
Focus on the Family
Action, said that conservatives hoped President Bush will nominate a
strict-constructionist to replace Justice O'Connor, who resigned in mid-2005. He said:
"We are
looking for a nominee who will uphold the Constitution as it is written, an
originalist who looks at the text of the Constitution and interprets it in
accordance with the original meaning given to it. What that means in
today's terms is a judge who doesn't add to or subtract from the
Constitution based on what he or she thinks is necessary for society
today. The Constitution doesn't 'evolve.' " 4
Implications of strict constructionism:
The Free Lance-Star newspaper in
Fredericksburg, VA, comments that one of the problems of interpreting the
Constitution as an enduring document is
"...discerning the original intention of historical
documents, especially one agreed to by a large body of politicians long
dead...After all, not everyone who first read the Constitution or had a hand
in its writing had exactly the same thing in mind. Diversity of opinion is
not a 21st-century invention. Disagreement and compromise were alive and
well in the 18th century." 5
The
U.S. Constitution does not specifically discuss the concepts of
Thus strict constructionists consider the constitution to be neutral on these and similar topics.
If a majority of Supreme Court justices followed this philosophy, the court
might declare numerous state and federal laws to be constitutional which:
Allow governments to criminalize what the majority -- or a well organized
and vocal minority -- feels is immoral.
etc.
American culture would take a major shift to the right.
The concept of strict constructionism is not necessarily applied consistently. For example,
the second amendment to the U.S. Constitution says that: "... the right of the
people to keep and bear arms, shall not be infringed." If the word "arms" were
interpreted according to the standards of 1791 when the Bill of Rights was
adopted, it would refer to "the flint lock musket ... the basic military
weapon of the 18th century," and similar manually loaded weapons. 11 The Bill of Rights would not
guarantee the right of adults to own or carry semi-automatic or automatic Uzis,
AK-47s, 9 mm handguns or similar cartridge loaded weapons. I have a hunch that
if a law restricting such weapons was reviewed by the Supreme Court, most or all
of the strict constructionist judges would interpret the constitution as a
living document that protects the right of citizens to own modern weapons.
Balance in the U.S. Supreme Court:
As of 2005-JUL, three justices of the Supreme Court, all of whom were appointed by Republican
presidents, appeared to interpret the Constitution in this way. They have tended to vote as a conservative block on
ethical and moral matters. They were Chief Justice William Rhenquist (appointed
by President Nixon) and Justices Antonin Scalia (appointed by President Reagan)
and Clarence Thomas (appointed by President George Bush).
As noted above, Justice O'Connor announced her resignation. Chief Justice Rhenquist, 80, died in 2005-SEP. This required President Bush
to
nominate two new justices. He selected two
justices, both of whom are believed to be strict constructionists. Their
confirmation by Congress has created a major shift in the
delicate liberal/conservative balance of the court.
Recent impacts of the strict constructionist view:
Strict constructionists' method of interpreting the Constitution has influenced their
majority or minority rulings
in many key cases. For example, among cases involving abortion access:
The 1992 case of Planned Parenthood v. Casey involved a
Pennsylvania law that required a woman seeking an abortion to have given
informed consent, to have waited for a 24 hour cooling-off period, to have
the consent of one parent (if she was a minor), and to have informed her
husband (if she were a married adult). Chief Justice Rehnquist joined Justices White,
Thomas, and Scalia in a minority dissent in support of the PA law. They wrote, in part: "Because abortion
involves the purposeful termination of potential life, the abortion decision
must be recognized as sui generis, different in kind from the rights
protected in the earlier cases under the rubric of personal or family
privacy and autonomy. And the historical traditions of the American people -
as evidenced by the English common...law and by the American abortion
statutes in existence both at the time of the Fourteenth Amendment's
adoption and Roe's issuance - do not support the view that the right to
terminate one's pregnancy is 'fundamental'....The correct analysis is that
set forth by the plurality opinion in Webster, supra: a woman's interest in
having an abortion is a form of liberty protected by the Due Process Clause,
but States may regulate abortion procedures in ways rationally related to a
legitimate state interest.The states may, if
they wish, permit abortion-on-demand, but the Constitution does not require
them to do so." 6
The year 2000 case Stenberg v. Carhart struck down the
Nebraska partial-birth abortion ban. "Chief Justice Rehnquist and
Justices Scalia and Thomas once more urged that the issue of abortion be
returned to the states." 7
Justice Scalia stated in his dissent that
"the Court should return this matter to the people�where the
Constitution, by its silence on the subject, left it�and let them
decide, state by state, whether this practice should be allowed."
8
Justice Thomas, writing the main dissent
for himself, Chief Justice Rehnquist, and Justice Scalia, stating: "Abortion
is a unique act, in which a woman's exercise of control over her own
body ends, depending on one's view, human life or potential human life.
Nothing in our Federal Constitution
deprives the people of this country of the right to determine whether
the consequences of abortion to the fetus and to society outweigh the
burden of an unwanted pregnancy on the mother. Although a
State may permit abortion, nothing in the
Constitution dictates that a State must do so.
" 8
Letting the "people of this country"
decide should not to be interpreted literally as implying a pro-choice stance
giving a woman the right to decide to have an abortion. The
justices see no "fundamental right" in the constitution for women to choose to have an
abortion. They appear to be stating that the state legislatures
should decide when, and under what circumstances, the state should allow a woman
and her physician
decide whether to have an abortion.
References used:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Religion, Politics and the Death Penalty," Pew Forum on
Religion & Public Life, 2002-JAN, at:
http://www.pewtrusts.com/
