Judicial philosophies: How judges
interpret constitutions and laws
Interpretation of the U.S. Constitution and federal/state legislation:
People can generally agree on what the text of a Constitution or law says;
they often have problems over interpretation. This is when they cannot
reach a consensus on what it means in today's culture.
Generally speaking, there are two main ways in which
court justices, judges, and legal analysts interpret laws and constitutions:
As living documents that evolve as the culture changes, and
As fixed documents whose meaning never changes from the time that
they were written until now.
There is a correspondence concerning between the religion and law
in the interpretation of text:
Liberal and progressive wings of religions tend to interpret holy books
as living documents, by considering the present-day culture, evolving concepts of morality, one's
personal experience and the findings of science. Thus, liberal and
progressive Christians reject many passages in the
Bible that they consider to be immoral by today's
Fundamentalists, other evangelicals and some mainline Christians
generally interpret biblical passages literally as the "Word of God," and act accordingly, unless a
different interpretation is obviously needed.
Interpreting laws and constitutions as living documents:
The document's meaning is viewed as continually
evolving to meet the culture's changing 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
viewpoint used by the Supreme Court of Canada and similar high courts of
many other western countries.
Justice Scalia does not share this philosophy. He attacked what he called this a "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."
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 the U.S. Supreme Court's ruling in Trop v. Dulles (1958).
2 The 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. 3 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.
"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'."
Religious and social conservatives frequently use
phrases such as "judicial activists" or as "judges legislating from the bench" to refer
to judges and justices who:
Interpret laws and the constitution as living
Detect a conflict between a piece of legislation
and the constitution, and rule consider the constitution supreme.
However, conservatives generally complain only when that interpretation conflicts with their position.
Interpret laws and constitutions as enduring documents:
This theory of interpretation is often called "strict constructionism."
It interprets 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." 5 It requires a judge to apply a law or constitution only as it was
The term has a second meaning. It is often loosely used as an umbrella term
that covers three slightly different philosophies:
Originalism: The belief that the meaning of the U.S. Constitution
is static, fixed, and knowable. It is to be interpreted today in the way in
which the authors originally intended it. One might look at the
writings of the framers of the constitution for guidance. This is a very popular theory
among political conservatives.
A weakness of this theory is that the framers
held diverse opinions at the time. Also, the Constitution was ratified by
delegates at 13 state conventions who themselves held diverse beliefs. Whose
opinions should rule? Finally, as
U.S. Constitution Online states -- with a possible reference to Thomas
"... do the opinions of a small, homogeneous group from 200 years ago have the
respect of the huge, diverse population of today? To a black woman, how much
trust can be placed in the thoughts of a white slave owner who's been dead for
U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas are
often referred to as originalists in matters of Constitutional interpretation. 7
Textualism: This is the belief that the Constitution's or law's ordinary
meaning as perceived by reasonable persons living at the time that it was
adopted should govern its interpretation today. Other factors are considered
The actual intention of the body that created and passed the document.
The exact problem that it was intended to solve at the time it was
Whether the law is just.
Whether the law can be justified, etc. 8,9
Justice Scalia is generally regarded as a textualist in the interpretation of
Literalism: The beliefthat a constitution or law should be
interpreted according to the literal meaning of its words at the time the document was
"... the contemporary writings of the Framers are not relevant to any
interpretation of the Constitution. The only thing one needs to interpret the
Constitution is a literal reading of the words contained therein, with an
expert knowledge in the 18th century meaning of those words.
leading to the final draft are not relevant, the Federalist Papers are not
relevant - only the words. The historical literalist takes a similar look at
the Constitution as an originalist does, but the literalist has no interest in
expanding beyond the text for answers to questions." 10
To further confuse the situation, the term "strict constructionism"
has a third meaning: it is often used very loosely to
refer to any judge, justice or legal analyst who is very conservative. It is often difficult
to determine the term's precise meaning in a give text.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Antonin Scalia, "A Matter of Interpretation: Federal Courts and the Law,"
edited by Amy Gutmann, Princeton University Press, (1997), Page 13. Cited
in: Ralph A. Rossum, "The Textualist Jurisprudence of Justice Scalia," Claremont
McKenna College, 2009, at: