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Author's Note

This research paper is intended to give a short overview of the longstanding debate in American politics about different methods of interpreting the United States Constitution. The stance is taken that broad interpretation is the only legitimate method of constitutional interpretation. The paper is not intended to be an exposition of the political views of the author – rather, it simply represents research on the issue. This paper is by no means exhaustive, as entire libraries could be filled with the amount of scholarship written about this subject. But hopefully the reader will find it a simpler, more easy-to-read argument. Enjoy!

Broadly Misunderstood: An Investigation of Constitutional Interpretation

Since the rise of neo-conservatism during the latter decades of the twentieth century, constitutional interpretation has become a hotly-contested political issue. However, if more citizens truly understood the complexities underscoring the interpretation of America’s founding document, perhaps the debate would cease to sizzle so intensely. Although conservative politics has largely monopolized the debate with its insistence upon strict interpretation, a closer examination of the two competing theories of constitutional interpretation reveals a surprising outcome. The Constitution of the United States should be interpreted broadly.

Before any delineation of constitutional interpretation can proceed, “broad” and “strict” interpretation must be properly understood. According to Law.com’s Legal Dictionary, strict interpretation is “interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions between when the Constitution was written and modern conditions, inventions, and social changes.”1) In other words, strict interpretation attempts to make the Constitution mean what it meant in the historical context in which it was written. As a result, strict interpretation will limit the government only to the actions and powers expressly delineated in the original wording of the Constitution. Defining broad interpretation, the Legal Dictionary continues: “Broad interpretation. . .expands and interprets the original language extensively to meet current standards of human conduct and complexity of society.”2) In short, broad interpretation interprets the Constitution from the contemporary context. Consequently, broad interpretation will not limit the government only to the actions or powers specifically found in the original wording of the Constitution. Proper definitions of these theories will exclude any inaccurate rhetoric which so often surrounds political issues.

First, the Constitution of the United States should be broadly interpreted because broad interpretation is more consistent with the wording and structure of the Constitution. As Bernard Schwartz, Chapman Distinguished Professor of Law at the University of Tulsa, explains, citizens too often forget that the Constitution is a short document which functions more like a general, broad framework for government than a strict legal code.3) Much of the phrasing of the Constitution is vague, ambiguous, and open to interpretation.4) The meaning of important constitutional concepts such as “establishment of religion,” “due process,” “equal protection,” and “privileges and immunities” have been the subject of scholarly debates almost since the inception of the United States; the wording expressed in the Constitution has been interpreted differently throughout American history. In fact, such ambiguity was part of the Founding Father’s original design for the Constitution. According to Goodwin Liu, Pamela S. Karlan, and Christopher Schroeder, prominent legal scholars and professors, the Founding Fathers purposely wrote the Constitution in general language because they wanted it to endure for many years.5) They did not specify how the government should act in every situation because they could not anticipate everything that might happen.6) Because of this purposed broadness, the Constitution simply cannot be interpreted according to what might have been the original meaning, or the strict interpretation, of its wording. Broad interpretation correctly allows the Constitution’s meaning to be influenced by the context in which it must be applied.

In the face of the Constitution’s design and structure, strict interpretation is revealed to be unsound and deceitful. Schwartz asserts that although strict interpretation seems appealing because it simplistically claims to offer an objective method of interpretation, “the doctrine is a delusion in the form claimed by its proponents.”7) As Schwartz continues, no consistent method exists for determining exactly what the Constitution actually meant when it was originally written.8) For one, the Founding Fathers themselves rarely, if ever, agreed about the meaning of the provisions which they enumerated in the Constitution.9) Furthermore, almost no written record exists of what the Framers thought about certain parts of the Constitution.10) Clearly, an attempt to interpret the Constitution strictly must lead to failure.

Second, the Constitution should be interpreted broadly because broad interpretation yields more politically neutral judicial decisions. Justice William J. Brennan, Jr., Associate Justice of the Supreme Court for over thirty years, reminds the citizen that although political conservatives and other “proponents of strict interpretation justify it as a depoliticization of the judiciary, the political underpinnings of such a choice should not escape notice.”11) As Barry Friedman, Jacob D. Fuchsberg Professor of Law at the New York University School of Law, further asserts, “Conservative scholars tailored this idea [strict interpretation] into a theory designed to justify conservative outcomes.”12) Brennan and Friedman essentially argue that although strict interpretation has such underlying weaknesses when examined in light of the Constitution, its proponents use the theory as a political tactic to accomplish their goals. For example, conservatives frequently slap the labels “judicial activism” and “legislating from the bench” upon any judicial interpretation which does not serve their purposes, claiming that a departure from strict interpretation introduces subjectivity into constitutional interpretation. Any reasonable person can distinguish that such tactics deserve no place in constitutional interpretation.

On the other hand, broad interpretation, despite claims by its detractors to the contrary, actually lends itself less to politicization. According to its definition, the theory’s underlying guidelines for expounding the Constitution reside not in a political agenda or in an indeterminate historical meaning, but rather in the immediate context. Justice Brennan concurs – any legitimate form of constitutional interpretation must heed contemporary values and beliefs when applying the Constitution to the modern world.13) Because it is more easily applied and more consistent with the Constitution, broad interpretation does not allow judges as much latitude to advance a particular political agenda as does an inconsistent, politicized method like strict interpretation.

Finally, the Constitution of the United States should be interpreted broadly because broad interpretation shows greater respect to the Constitution and to the Founders themselves. As previously mentioned, the Founding Fathers purposely wrote the Constitution broadly so that it would continue to endure throughout many different historical periods and many different contexts. However, strict interpretation makes the Constitution irrelevant and obsolete to the point of danger. For example, the meaning of the “cruel and unusual punishments” clause would be dangerously altered; as Schwartz demonstrates, strict interpretation would necessitate the re-introduction of penal punishments such as “whipping, cropping the ears, and the like [which were] common when the Bill of Rights was adopted.”14) Such punishments were accepted in the Founders’ day but would be correctly considered cruel and unusual today. If carried through, strict interpretation would renew such barbaric treatments.

Additionally, the Fourteenth Amendment displays the danger of strict interpretation. Over the centuries, the meaning of this amendment has evolved for the better to prevent segregation and discrimination against all minorities, even though its original wording included none of these positive reforms. Strict interpretation of the Fourteenth Amendment would, by necessity, re-institute segregation in schools.15) Strict interpretation would make the Constitution obsolete in many ways, but it is safe to assert that the majority of beneficial roles the federal government plays in contemporary society would be stripped away if strict interpretation was actually carried through. Such a method would be a blatant disregard of the Founders’ ideals and of the document which enshrines those ideals.

On the contrary, broad interpretation upholds the Constitution’s longevity and relevance. As Liu, Karlan, and Schroeder aver, “What accounts for our enduring faith in the Constitution is not that we have rigidly adhered to…so-called strict construction of the text. It is that we have continually interpreted the Constitution’s language and applied its principles in ways that are faithful to…the social context in which new challenges arise.”16) This powerful quote serves to remind the interested citizen that for the Constitution to endure, it must be broadly interpreted. Contrary to strict interpretation, a broad method of interpretation will enable the Constitution to guide the United States throughout many years of its existence. America’s founding document will never become obsolete or irrelevant as long as it is interpreted within the context in which it must be applied, rather than by its original wording.

In summary, a framework of broad interpretation must be used for the Constitution to endure throughout history. The American Constitution evidences brilliance in its broadness, as evidenced by the deliberate way in which the Founders structured the Constitution. Strict interpretation is an illegitimate and dangerous method of constitutional interpretation which belongs in the world of political talk shows, not within the ivory pillars of the Supreme Court. But the average citizen might still wonder what he or she would benefit by a correct understanding of the interpretation debate. Interestingly, the issue of constitutional interpretation has grave significance to any voting citizen. Far too often, issues which involve nothing but partisan politics are portrayed as issues of constitutionality; sadly, citizens are often unable to tell the difference. A citizen who can distinguish between methods of constitutional interpretation is thereby better equipped to evaluate political issues, candidates, parties, and elections. As one of the most important Founding Fathers, Thomas Jefferson, reminds all American citizens, “This corporeal globe, and everything upon it, belongs to its present corporeal inhabitants. . .They alone have a right to direct what is the concern of themselves alone.”17) May the citizens of this current world continue through broad interpretation to uphold the Constitution’s timeless relevance, and may every new generation of Americans discover for themselves what the Constitution means – not in a world gone by, but in the world which now calls for its guidance.

Politics History

1) , 2) ALM Legal Intelligence. “Law.com Legal Dictionary.” http://dictionary.law.com/Default.aspx?selected=2028 (accessed October 10, 2012).
3) , 4) Bernard Schwartz, The New Right and the Constitution: Turning Back the Legal Clock (Boston: Northeastern University Press, 1990), 10.
5) Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder, Keeping Faith with the Constitution (Washington, D.C.: American Constitution Society for Law and Policy, 2009), 40 http://www.acslaw.org/pdf/ACS_KeepFaith_FNL.pdf (accessed September 22, 2012).
6) Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder, Keeping Faith with the Constitution (Washington, D.C.: American Constitution Society for Law and Policy, 2009), 40 http://www.acslaw.org/pdf/ACS_KeepFaith_FNL.pdf (accessed September 22, 2012). pg 48
7) Bernard Schwartz, The New Right and the Constitution: Turning Back the Legal Clock (Boston: Northeastern University Press, 1990), 34.
8) , 9) , 10) Bernard Schwartz, The New Right and the Constitution: Turning Back the Legal Clock (Boston: Northeastern University Press, 1990), 9.
11) , 13) Justice William J. Brennan Jr., “Constitutional Interpretation” (lecture, Georgetown University, Washington, D.C., October 12, 1985), http://www.teachingamericanhistory.org/library/index.asp?document=2342 (accessed September 19, 2012).
12) Barry Friedman, “The Constitution: Change and Interpretation,” American Constitution Society for Law and Policy (June 2007), http://www.acslaw.org/sites/default/files/Barry_Friedman_Vanderbilt_Paper_6-2007_0.pdf (accessed September 28, 2012).
14) Bernard Schwartz, The New Right and the Constitution: Turning Back the Legal Clock (Boston: Northeastern University Press, 1990), 15.
15) Bernard Schwartz, The New Right and the Constitution: Turning Back the Legal Clock (Boston: Northeastern University Press, 1990), 25.
16) Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder, Keeping Faith with the Constitution (Washington, D.C.: American Constitution Society for Law and Policy, 2009), 40 http://www.acslaw.org/pdf/ACS_KeepFaith_FNL.pdf (accessed September 22, 2012). pg 52
17) Thomas Jefferson to Samuel Kercheval, July 12, 1816, in Thomas Jefferson, Writings, ed. Merrill D. Peterson (New York: The Library of America, 1984), 1401.

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