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American laws & courts

Judicial philosophies: How judges
interpret constitutions and laws

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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:

bullet As living documents that evolve as the culture changes, and
bullet 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:

bullet 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 standards.
bullet 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 also the 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." 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 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.

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'." 4

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:

bullet Interpret laws and the constitution as living documents, or
bullet 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 written.

The term has a second meaning. It is often loosely used as an umbrella term that covers three slightly different philosophies:

bullet 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 Jefferson:

"... 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 generations?" 6

U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas are often referred to as originalists in matters of Constitutional interpretation. 7

bullet 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 irrelevant, including:
bullet The actual intention of the body that created and passed the document.
bullet The exact problem that it was intended to solve at the time it was written.
bullet Whether the law is just.
bullet Whether the law can be justified, etc. 8,9

Justice Scalia is generally regarded as a textualist in the interpretation of legislation.

bullet Literalism: The belief that a constitution or law should be interpreted according to the literal meaning of its words at the time the document was authorized. Thus:

"... 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.

The debates 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.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Religion, Politics and the Death Penalty," Pew Forum on Religion & Public Life, 2002-JAN, at:
  2. "Trop v. Dulles, 356 U.S. 86 (1958)." text is at:
  3. "Trop v. Dulles," U.S. Supreme Court, 1958-MAR-31, at:
  4. "The execution of mentally ill offenders," Amnesty International, at:
  5. Antonin Scalaia, "God's Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
  6. "Constitutional Interpretation," U./S. Constitution Online, at:
  7. "Originalism," Wikipedia, at:
  8. 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:
  9. "Textualism," Wikipedia at:
  10. "Constitutional Interpretation," at:

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Copyright 2003 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-17
Author: B.A. Robinson

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