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Essay: Understanding the Impact of Different Interpretations of the U.S. Constitution

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  • Published: 25 February 2023*
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When it comes to interpreting the Constitution, there seems to be two very detrimental views that people tend to identify with. The first view makes the Constitution into a regressive, “eighteenth century straitjacket” while the other allows judges to decide for themselves what the Constitution actually means, with no real guiding principle. Both of these views are the two major interpretations of our Constitution, and have large followings on either side of the political aisle. It is possible to stray away from either of these views however. Justice Antonin Scalia is a self-described “originalist”, but not in the sense that fits the stereotypical “regressive  conservative originalist” that believes “All men are created equal” means any white, landowning male that is over eighteen years old and nothing more. Justice Scalia has a theory that there is a third view that blends the best of the originalist and activist views of interpreting the American Constitution. This pragmatist interpretation allows the Constitution to remain relevant in our contemporary society while still maintaining the original meaning of the text that the authors of the Constitution wrote over two centuries ago. This view is the one that all judges at the district, state superior, and Supreme Court levels should follow, as Justice Scalia did.

First, we must understand what each of the major views of the Constitution are. These two views largely correspond with the political left and right, but one does not need to be on either side to adopt the view. The first is the “originalist view.” Originalism is “a principle of legal interpretation that relies on the original meaning of those who wrote the Constitution. It insists that Americans rebound to the literal meaning of the Constitution and its amendments as their original authors and debaters understood them.”  Most people who identify as conservative will tend to hold this view, but again, not every conservative will hold it. Those holding the originalist view will tend to believe that justices today should not be deciding what the Constitution meant then and what it means now. If judges keep doing that, the Constitution will lose all meaning. Scalia calls that practice “lying” about the meaning of the Constitution, which it is. Activism, on the other hand, allows for the meaning of the Constitution to be altered in order to make the Constitution relevant to today’s society. Sometimes called the “living” or “breathing document” interpretation, it aims to make the Constitution into a document where the meaning can change with the times. This view is held by a majority of people who tend to lean left, but as with originalism, it is not subject to partisan lines. Today our “…modern world and society poses issues that the framers of the Constitution could have never imagined. Not letting the meaning of the Constitution evolve would turn it into an ‘eighteenth century straitjacket.’” This view is based on the notion that our Constitution is constantly evolving with our society and our interpretation of it must also evolve. However, it is increasingly difficult to determine exactly how the Constitution fits into our lives.

The difference between the two views is not actually as big is one might make it out to be. Even when we are applying the literal meaning of the Constitution, we are doing so in the context of our contemporary world. It will always be interpreted by our own contemporary standards. There is a common middle ground that will always allow us to interpret the Constitution by our own ideas and our own times. This common ground found in the pragmatist view was called a “reasonable interpretation” by Justice Scalia, and entails giving the meaning that was originally intended to the text, and adopting amendments to change the meaning of the Constitution; no reading new meanings into the old text.

When reading this “old text”, both interpretations of the Constitution carry negative results that ultimately detract from the value and true meaning of the Constitution. First, originalism, as mentioned above, ultimately turns the Constitution into an “eighteenth century straitjacket” that forces judges across the country into obeying the literal and original meaning of the text in the Constitution. This creates obvious regressive consequences for civil rights: “men” in “All men are created equal” literally means any white, property-owning male, as understood by the authors of the text. Today, “men” is understood to refer more to “mankind.” It is in this sense that one would find it extremely difficult to be a true “originalist” in today’s society, and many who hold this view would likely find themselves instead agreeing with Justice Scalia’s idea of a middle ground. This originalist view puts too much emphasis on language, history, tradition, and precedent, and has less of a regard for the consequences of a decision, such as the regression of civil rights for example.

Next, an activist interpretation takes away the meaning and value of the Constitution. According to Scalia, the Constitution was written to be interpreted as it was written. There is no point in having a constitution if its meaning is constantly changing. This view places that meaning and value in the hands of the judges who are ruling. With this interpretation, the Constitution can mean one thing one day and the opposite the next. Judges can spin words into meaning something that they don’t. According to Scalia, judges would originally fib about spinning words into different meanings. They would say “this is what the Constitution means when it says “x”. Today, judges are much more open about spinning words, often saying “the Constitution used to mean “x”, but now it means “y”. The negatives of both of these interpretations lead to the ultimate destruction of the value and meaning of the Constitution and judges should take care in their rulings to not bring us back to the colonial days, but at the same time also avoid taking us so far ahead that the Constitution means nothing.

Today, we need a view that is in between these interpretations. Such a view would ideally blend the best of the interpretations together. Scalia called this a “reasonable” view, and for the purposes of comparison, should be called a pragmatist view, which stems from originalism. This is not the stereotypical “conservative originalist” where one seeks to enforce the literal and original meaning of the text in the Constitution as it was understood by its authors. This pragmatist” view aims to keep as much originality of the Constitution in rulings as possible, sometimes benefiting those who are thought of as “activists.” Scalia gives the example where a case is brought up about flag burning. Under the original text of the first amendment, flag burning is protected under the Constitution.  Siding with Scalia, flag burning is protected by the first amendment, and would be ruled as protected in a trial. This example shows that both activist and originalist views are not subject to partisan boundaries; it is completely possible to have a conservative activist or a liberal originalist. Both views are used by both ideologies when it benefits either side most, which is what makes both interpretations very dangerous. A Scalia pragmatist” believes in exactly what the Constitution says, even if it doesn’t fit their ideology.

Scalia’s reasonable, or pragmatist, view is superior to both the originalist and activist interpretations. This is for many reasons. First, both activism and originalism are rooted in partisan politics. Both views are used by liberals and conservatives alike when it benefits their own motives. This is the factor that makes the interpretations dangerous: when both ideologies use the Constitution for their own good, and refuse to keep a consistent view of the Constitution, justice becomes obscured and obstructed. Inconsistencies in rulings lead to trouble in the justice system. The second reason is because both views ultimately take away from the meaning of the Constitution. Originalism, even though the lesser of the two evils because it still maintains a meaning of and places a value on the Constitution, in its most widely understood form, would bind judges to make decisions that would cause us to live in eighteenth century America. Activism would ultimately take all meaning away from the Constitution; judges would decide what it actually says. Pragmatism ensures that all amendments are considered. It ensures that in order to change the meaning of the Constitution, amendments are adopted and actually encouraged! Scalia’s view is rooted in originalism, but in a way where the literal text is interpreted and preserved, and the literal meaning is understood, but still applicable to our contemporary society. His view allows us to keep the original meaning of the Constitution relevant today without needing to change its meaning.

Neither of the two general views of the Constitution are good for the document itself or our country. Originalism, while the lesser of the two evils, still maintains a meaning for the Constitution, but a meaning that takes us backward in time. Activism in its entirety would give judges complete discretion over what the Constitution means and that meaning can change far too easily. Both of these widely held beliefs put partisan politics in the way of the administration of justice. The best view of the Constitution is rooted in Scalia’s idea of a pragmatist” interpretation. This view blends the best of both of the originalist and activist interpretations. The original meaning of the Constitution is preserved, and it remains relevant in today’s world. The meaning is able to be changed through old-fashioned Amendments and judges would not need to say what the Constitution means from day to day. If all justices were to follow Antonin Scalia’s lead, everyone would have an easier time enduring that there truly is “liberty and justice for all.”

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