In this essay I will try to explain and critique the two dominant methods of constitutional interpretation. Which are originalism and non-originalism. I will do this by taking help from “How to Read the Constitution” by Christopher Wolfe, and different source’s from Internet. I will start by giving what Wolfe says originalism is, and then I will give some background to other ways to interpret the constitution, and the founders and interpretation and I will finish up with my view on originalism and non-originalism and the critics to that.
Wolfe on Originalism
Wolfe says that originalism is a two-fold doctrine. First, it holds that the constitution is generally intelligible and with effort its meaning can be understood, its meaning is not simply and inevitable in the eye of the beholder. Second, it holds that in the absence of a clear meaning- since language cannot be perfect and the framers did not intend to provide rules for all possible future circumstances – the condition for the exercise of judicial review do not exist. The second aspect of originalism is derived from reflection on the foundations of judicial review. Judicial review is an implication of the constitution, fairly read, but it is an implication with a definite from: judges should prefer the constitution to act that is incompatible with it.
The Founders and Interpretation
Christopher Wolfe says that the difference of interpretation arise not from the application of different rules but from different conclusions drawn from applications of the same rules, he says that when he has this in his mind: The disagreement that quickly arose on important issues of interpretation that the appearance of general agreement on rules of interpretation was misleading.
The method of asserting the “objects,” which are especially important to note in cases where the words bear more than one meaning, is to examine “the subject the context, and the intensions of the person using the worlds”.
Certain historical considerations are essential. The words are to be understood by those for whom they were written, and therefore we must know what those understandings where. Christopher Wolfe believes that the framers would tend to give preferences in such cases to the fair reading of the document itself.
To summarize, the approach to constitutional interpretation employed in the early years of American government: an interpreter is to begin with the words of the document in their ordinary popular usage and understand the in light of their context. That context includes the words of the provision of which it is a part, but also extends to the much broader context of the document as a whole. The deeper assumption underlying these early rules of interpretation was a fairly traditional realist epistemology: that the constitution has a fixed, determinate meaning intelligible to those who give it a fair reading. Under modern assumption, a constitution is unavoidably made up or created by interpreters, to a greater of lesser extent, as they go along. The framers of the constitution, on the contrary, looked at the constitution as an intelligible fixed standard that made possible a republican rule of law, rather than of men.
Literalism – Historical
Historical literalists believe that 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. For
example, an historical literalist will see the militia of the 2nd Amendment as referring to all able-bodied men from 17 to 45, just as in the late 18th century, and this interpretation will color that person’s reading of the 2nd Amendment.
Literalism – Contemporary
Very similar to an historical literalist, a contemporary literalist looks only to the words of the Constitution for guidance, but this literalist has no interest in the historical meaning of the words. The contemporary literalist looks to modern dictionaries to determine the meaning of the words of the Constitution, ignoring precedent and legal dissertation, and relying solely on the definition of the words.
Just as the historical literalist view parallels the originalist view, but much more narrow in focus, so too does the contemporary literalist mirror the modernist; and again, the main
difference is the literalist looks only to the words of the Constitution for meaning. To expand on the 2nd Amendment example, the contemporary literalist will view the militia as the modern National Guard, and this will color that person’s views on the 2nd.
Finally, the democratic interpretation is the last approach to interpretation. Democratic interpretation is also known as normative or representation reinforcement. Democratic
proponents advocate that the Constitution is not designed to be a set of specific principles and guidelines, but that it was designed to be a general principle, a basic skeleton on which contemporary vision would build upon. Decisions as to the meaning of the Constitution must look at the general feeling evoked by the Constitution, then use modern realism to pad out the skeleton.
As evidence, democrats point out that many phrases, such as due process and equal protection is deliberately vague, that the phrases are not defined in context. The guidance for interpretation must come from that basic framework that the Framers provided, but that to fill in the gaps, modern society’s current morals and feelings must be taken into consideration. Changes in the Constitution that stem from this kind of philosophy will end up with principles of the population at large, while ensuring that the framers still have a say in the underlying decision or ruling. This interpretation is seen to enhance democratic ideals and the notion of republicanism.
The job for the Judge here is to find the law. Look at the constitution test to see of the meaning is clear, and if the meaning is clear then the case is settled, otherwise they have to fund other means to fund what the law should be. They would look at the intensions if the framers, the spirit of the constitution, look at judicial reviews, how the ratifiers understood the constitution.
The job for the judge here is to promote justice, her own values, economic and social. They would look at the constitution text and imply it; the text is not tied to literally interpretation. Their conception is that the judge interprets what is good for the country, at any given time. They don’t care about the intensions of the framers, they would say “why should we be governed by people that are dead,” constitution belongs to the living. They would keep the constitution updated, current. They would do this by amending, changing the constitution to keep it current.
Critics of Originalism
The judge own values may get in the way, epistemological, historical. We cannot know today in 1999 what the framers intended in 1789. We don’t have accurate historical document (material) representing political problems. Can we accurate apply original problems that the framers saw today, they couldn’t for example imagine that we would have something like Internet and how free speech would apply to that? We should Hamilton and Jefferson rule us from the grave. How does we know that what the framers intended and what the ratifiers understood the constitution to be, was the same.
Critics of Non- Originalism
What qualifies the judge to determine what is best for America? We should the courts making the law, when it is the Congress job to do that. The job of the Supreme Court is to promote justice.