Interpreting the Constitution
/This site contains thousands of words describing the US Constitution and what different people have said about it. If you follow the links to the recommended books and articles, you’ll find millions of words from dozens of sources going deeper into many aspects of American and its Constitution. You might suppose that with all that explanation, the Constitution would be pretty clearly understood by now.
It’s not. Even after 230+ years, there is no set, fixed or shared meaning of the Constitution. Instead of uniting all citizens under one set of shared law and shared values, the Constitution is just another thing citizens argue about. These arguments about the relevance and meaning of the Constitution are confusing and harmful to the nation.
To begin to understand why America’s much-studied Constitution is still so often disputed, start with this video explaining the distinction between a “loose” and a “strict” interpretation of the Constitution.
Did you notice the nonsense at the 1:30 mark? The narrator says Alexander Hamilton believed in a loose construction, or a “living Constitution.” He explains.
Someone who believes in a living Constitution believes that the meaning of the document changes with the times. Why should people living in the 21st Century be held to the laws and ideas of farmers from over 200 years ago.
Alexander Hamilton was never in a position to speculate about what the founders had intended. He was one of the founders himself and a major contributor to the text. He knew full well what he and the others intended. American society changed little from the adopting of the Constitution in 1789 and Hamilton’s death in 1805. The society and circumstances he lived in were the society and circumstances the Constitution was written in and for.
Hamilton never expressed any opinion about whether “strict” or “loose” interpretation to the founders intentions was better. So it is silly to say Hamilton favored loose interpretation. But he pretty clearly wanted laws to be respected and honored strictly. Here’s Hamilton from Federalist #78:
Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act.
The “solemn and authoritative act” described there probably means new legislation. Hamilton is a saying the government can do what it wants, but it needs to do it properly, by passing new legislation and specific laws. it can’t just ignore or distort existing law.
The narrator of the video confuses Hamilton’s desire for an energetic government with a loose interpretation of the Constitution. They are not the same. Hamilton wanted government to do big things. He wanted a president with nearly as much stature as the British king. He wanted a Congress that could raise vast sums of money and impose its will on the states and on the citizens. But that doesn’t mean he believed the Constitution ought to be loosely interpreted. In the passage quoted above, Hamilton makes it clear that he thought necessary change should be accomplished by passing proper laws in the proper way — not by fudging the meaning a existing laws.
The first great Constitutional test came during Hamilton’s lifetime — the question of whether Congress could create a national bank. Hamilton wanted the bank and he said Congress had the power to create it. But he didn’t base his opinion on “loose interpretation.” He didn’t think he needed to. The Constitution (Article 1, Section 8, Clause 18) says Congress has the power. . .
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Clause 1 of Article 1 gives Congress the power to pay debts. For Hamilton, the language was clear: if Congress had the authority to do whatever was necessary and proper to pay debts, then Congress had the power to create a national bank. There was no “loose interpretation” about it. Hamilton’s opponent in the matter, Thomas Jefferson, merely pointed out that the Constitution doesn’t say “Congress can create a national bank,” which it doesn’t. But just because Jefferson was a strict constructionist and the two men disagreed doesn’t make Hamilton a loose interpreter.
Here’s a second video about Constitutional interpretation.
The speaker says people are mistaken about how the courts and the Constitution work.
When people hear about judges interpreting the Constitution for the purposes of making a ruling, they tend to think that this is something sinister going on like the Supreme Court justices are inflicting their will upon people by interpreting things in the Constitution. But this is a misunderstanding because there’s no way to read the Constitution without interpreting it in some way.
The statement asserts that nothing sinister can result from the Supreme Court interpretations. There have been enough terrible Supreme Court decisions, from Dred Scott to Plessy v. Ferguson to Citizens United to discredit that statement. But he said it. He says interpretation is innocent because it is necessary, and necessary because the Constitution is vague. Then he adds this:
Pretty much everything is vague in that way.
No it isn’t. There are plenty of topics that are not vague in that way. I am going to present three lengthy examples of guidelines that are not vague in that way. You can skip over them, as I’m only offering the example to belabor the point.
Building Codes
One example is building codes — the guidelines that builders use to ensure a new house or office building will be safe and durable. The following regulation describes how electric wire may be extended through an unfinished basement. Don’t worry about the meaning — just appreciate how specific and detailed it is:
Where type NM or SE cable is run at angles with joists in unfinished basements and crawl spaces, cable assemblies containing two or more conductors of sizes 6 AWG and larger and assemblies containing three or more conductors of sizes 8 AWG and larger shall not require additional protection where attached directly to the bottom of the joists. Smaller cables shall be run either through bored holes in joists or on running boards. Type NM or SE cable installed on the wall of an unfinished basement shall be permitted to be installed in a listed conduit or tubing or shall be protected in accordance with Table E3802.1. Conduit or tubing shall be provided with a suitable insulating bushing or adapter at the point where the cable enters the raceway. The sheath of the Type NM or SE cable shall extend through the conduit or tubing and into the outlet or device box not less than 1/4 inch (6.4 mm). The cable shall be secured within 12 inches (305 mm) of the point where the cable enters the conduit or tubing. Metal conduit, tubing, and metal outlet boxes shall be connected to an equipment grounding conductor complying with Section E3908.13.
The building code ruling isn’t vague at all. And this is just one small section of a document hundreds of pages long. the building code succeeds in answering exactly what is allowed for every particular situation. By comparison, the US constitution, consisting of fewer than 5,000 words, hardly seems to be a serious effort at telling how to run a country.
Baseball
Another example of guidelines that are not vague is the rules and regulations guiding major league baseball. Here is the definition of a bat:
3.02 The Bat(a) The bat shall be a smooth, round stick not more than 2.61 inches in diameter at the thickest part and not more than 42 inches in length. The bat shall be one piece of solid wood. NOTE: No laminated or experimental bats shall be used in a professional game (either championship season or exhibition games) until the manufacturer has secured approval from the Rules Committee of his design and methods of manufacture. (b) Cupped Bats. An indentation in the end of the bat up to 1¼ inches in depth is permitted and may be no wider than two inches and no less than one inch in diameter. The indentation must be curved with no foreign substance added. (c) The bat handle, for not more than 18 inches from its end, may be covered or treated with any material or substance to improve the grip. Any such material or substance that extends past the 18-inch limitation shall cause the bat to be removed from the game.
Baseball’s rulebook doesn’t dictate exactly what must be done in every case. the game is guided by traditions and unwritten rules and ideas of “how the game is played.” But there is nothing vague about what’s a permissible bat.
What a dog is
And here’s a third example. Here is what the American Kennel Club has to say about the shape of an Irish Setter dog’s head:
Head: Long and lean, its length at least double the width between the ears. Beauty of head is emphasized by delicate chiseling along the muzzle, around and below the eyes, and along the cheeks. Expression soft, yet alert. Eyes somewhat almond shaped, of medium size, placed rather well apart, neither deep set nor bulging. Color, dark to medium brown. Ears set well back and low, not above level of eye. Leather thin, hanging in a neat fold close to the head, and nearly long enough to reach the nose. The skull is oval when viewed from above or front; very slightly domed when viewed in profile. The brow is raised, showing a distinct stop midway between the tip of the nose and the well-defined occiput (rear point of skull). Thus the nearly level line from occiput to brow is set a little above, and parallel to, the straight and equal line from eye to nose. Muzzle moderately deep, jaws of nearly equal length, the underline of the jaws being almost parallel with the top line of the muzzle. Nose black or chocolate; nostrils wide. Upper lips fairly square but not pendulous. The teeth meet in a scissors bite in which the upper incisors fit closely over the lower, or they may meet evenly.
And that’s just one part of one breed of dog. Suffice it to say that the video narration cited above doesn’t make a serious point when he says the vagueness of the Constitution is desirable. Or necessary.
Back to the point
These three examples show that it is possible to be very clear, plain and specific about almost anything. The Constitution could be more clear, plain and specific than it is. It is too short. It does not adequately address many important details of American governance. It is short and vague because those 4,543 words were as much as they could agree on during their short convention in the summer of 1787. They addressed as many issues as they could. Writing a short and vague Constitution that could be loosely interpreted was never intended.
Given that the Constitution is vague, citizens have developed habits for how to get what they want out of it. The terms used to describe these habits and strategies are convoluted, perplexing and self-contradictory. The brief definitions given here are just a hint at what the terms mean.
Living Constitution or Loose Construction — The words in the Constitution can and should be interpreted by people in their own day. Courts and legislatures should not worry too much about the words mean.
Strict Constructionism – The Constitution means what it says, and people shouldn’t pretend otherwise. If the Constitution says you can’t, you can’t! This view is more conservative, but it doesn’t necessarily keep the country in the past. It only insists that if new conditions demand change, then new laws should be adopted.
Pragmatism -- A pragmatist believes that some desirable outcome — fairness, economic growth, social justice, human rights, etc. — are most important. The Constitution is well and good, but it shouldn’t get in the way of progress. A pragmatist will use the Constitution if it supports his or her goal, and just as willingly disregard it if it provides no help. Pragmatism is different from loose interpretation in that the latter still insists that the Constitution hs to be the basis of the decision while the former is more willing to set the Constitution aside.
Originalism – The framers’ intentions matter. The language matters, too. So, while no court or legislature should do anything that is clearly prohibited, they can do something that they think the framers would approve whether the words of the Constitution allow it or not.
Textualist – The framers’ intentions don’t matter. The circumstances of one particular case don’t matter. What matters is a straightforward reading of the words in the Constitution.
Remember with all these that an opinion about how to interpret the Constitution isn’t the same as being for or against any new policy idea. A loose constructionist could say, “My interpretation of the Constitution allows this proposed action, but I’m opposed to it anyway.” A strict constructionist could say, “The Constitution as written doesn’t allow us to do this. But I think we really should, so let’s amend the Constitution to make it permissible and then let’s do it.”
Former Supreme Court Justice Antonin Scalia was a strict constructionist, and an originalist/textualist. In a famous speech from 1989, he explained that the purpose of the Constitution is to slow down the rate of change.
A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect "current values." Elections take care of that quite well. The purpose of constitutional guarantees -- and in particular those constitutional guarantees of individual rights that are at the center of this controversy -- is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable. Or, more precisely, to require the society to devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside.
Scalia did not like the living Constitution. He thought changes in American law and government and social practice ought to be accomplished through the legislative process and not by judges.
Current Supreme Court Justice Sonia Sotomayor was asked in an interview in 2013 whether the Constitution is a living document or not. She answered by saying the question doesn’t have meaning.
To talk about strict interpretation or living Constitution -- those are not words I use. And they’re not words that I think have much meaning.
Sotomayor says the decision should be based on circumstances of each particular case. That marks her as a pragmatist — at least on some issues.
Citizens are seldom required to interpret the Constitution. We’re encouraged to defend it and required to obey the laws that more or less follow it. But interpreting the Constitution is the work of high court judges. So it is not important that a citizen develop a sophisticated view of interpretation.
If you want to go further, the next step could be reading The Living Constitution, a 2010 book by University of Chicago Law Professor David Strauss.
Think:
Which way of interpreting the Constitution makes sense to you? what re the downsides of that approach?
Few other set of rules or guidelines in the life of a citizen are open to “loose” constriction. You aren’t allowed to loosely interpret the speed limit or the requirements for a school assignment. Is there any good reason why the Constitution should be vague?
