21 March 2005

Methods of Interpretation

From Chris' cogitation:
Will someone PLEASE tell me how any rational human being cannot see that the meaning of the Constitution evolves over time? Who here cannot agree that the meaning of WORDS evolve over time? Do I see any hands? This is why we have new versions of dictionaries periodically. OK, so if the Constitution is words, and words evolve over time, who is to be the arbiter of the law in relation to the evolving meaning of words? The Supreme Court of course... I guess I have a lot coming to me in law school, but it seems to be a ludicrous proposal that we should only use "original meaning" to interpret the Constitution, a thoroughly arbitrary step back several hundred years in human understandings.
Sure, words evolve over time but it doesn't happen at nearly the pace it once did. The meanings of most words are now what they were at about the time the Constitution was written. While there are numerous accents and slangs which still exist a kind of Common Written English has evolved with the literacy of society in general and the efforts of the good folks at Webster and Oxford. Sure, there are some differences: chesterfield/couch, queue/line, boot/trunk, centre/center (the only appropriate use of the spelling centre in the States is Centre College in Kentucky anyone else using it is appealing to pretentiousness). However, more serious political/philosophical terms have tended to retain their meaning.

The real problem is that any baseline document is either incredibly long and complex or short and vague. Our Founders chose short and vague. While the Constitution is not a vague document in its entirety it doesn't even try to address every single situation with specificity. It does not address some areas at all, addresses some specifically, and allows for many a gray areas which Congress and the courts can elaborate on.

The argument is where a specific question/problem falls in this spectrum. Stepping into this void are a number of theories: textualism, originalism, and living constitutionalism (for lack of a better term).


Personally, I am a textualist. How did I become a textualist? By watching statutes and Constitutional Amendments get absolutely mangled by courts which do not want to overturn convictions.

As I define textualism it is an attempt to first and foremost to get the meaning strictly from the words. However, this does not mean you are so confined by the words that you must come to ridiculous conclusions such as the 4th Amendment's protection of "papers" only applying to cellulose pulp products. The primary question is whether the particular situation is actually addressed by the Constitution. If it is not the analysis ends there. It's something that should be in the realm of the Congress or State Legislatures. If it is clearly stated then the answer given is the answer given. Of course, the vagueness of the Constitution can often lead to ambiguity which must be resolved in order to answer the question.

When faced with words that have some ambiguity to them the first recourse should be to rules of construction such as the Rule of Lenity (in criminal cases), expresio unius est exclusio alterius, noscitur a sociis, or ejusdem generis. Of course, I'm not foolish enough to believe that this will solve all contested interpretations. If used to interpret constitutions and statutes more often than I see now it would probably lead to a number of better reasoned opinions but it cannot solve all ambiguities.

Historical Analysis

To the extent that there are further ambiguities IMHO the next step should be historical analysis (originalism). It's not arbitrary to look back to what the historical intent of a disputed word or phrase was in the text. In fact, it may be the only honest way to determine meaning if the language used has shifted its meaning over time. This is especially important in a document such as the Constitution which is supposed to have set the limits within which our government can act. Historical analysis can help us know what these limits are.

Of course, there are problems with historical analysis. For something involving as many people as the constitutional convention it is most likely impossible to know exactly what the majority of the people of the convention thought about a particular passage. We can look to writings such as the Federalist Papers and the Anti-Federalist Papers and find some political philosophy and practical application but how much is apology created after the fact? The very point of these papers were to persuade. How much were the interpretations offered skewed in order to persuade the audience their audience? How closely do they track with the reasoning of the voting members of the convention? Well, short of actually gathering the notes of every member (making the assumption that they all kept notes) and comparing them in depth to provide analysis you aren't going to have an answer to that. That doesn't mean documents such as those mentioned above shouldn't be relied upon. It just means that one should be wary of blind acceptance of their assertions.

Personally, I prefer a more general historical analysis. For instance, in Cabballes Justice Stevens asserts that the Fourth Amendment is not applicable if the only thing which would be exposed is contraband. A historical view makes this position hard to justify. Among our Founders were a number of smugglers and at least one smuggler's lawyer (John Adams was John Hancock's lawyer). It seems likely that the concern of this Amendment is not one of whether legitimate activities or items are exposed; it is intended to put a crimp on the government in all searches. However, even here the analysis has flaws. The two august personages I mention above were not signatories of the Constitution and I have no idea what roles, if any, they might have played in the Amendments (I'm sure I could find out but it's late so I am going to finish this extemporaneously and go to bed). I don't specifically know if the people at the 1887 convention had the exact same intentions as those in the Continental Congress. I just have a pretty good idea of what the leading citizens in that general time period believed were the abuses they had suffered under the British and knowledge that the Constitution was quickly amended to keep that from happening under our federal government. It gives me an understanding of the most likely meaning of the Amendment.

Living Constitution

The living or evolving Constitution can bring results which are good or bad, depending upon your point of view and the particular case at hand. However, in my opinion this interpretation of the Constitution is a veiled way of asserting one particular thing: the common law is superior to statutory law.

Now, obviously there are times when constitutional interpretation requires courts to assert the power to apply the Constitution to a statute. For instance, if Congress were to pass a statute denying any citizen of German descent the right to a jury trial the courts should strike that statute down as violative of the 6th Amendment.

The difficulty arises when there is little for the courts to hang their hats on. In cases such as the recent death penalty decisions making it unconstitutional to execute retarded or underage defendants there really isn't anything in the Constitution which addresses this matter directly. The Fifth and Fourteenth Amendments rebut any assertion that the death penalty itself is unconstitutional and there are no further instructions as to the individual characteristics of a person who is eligible for death.If we look to history we see over 200 years with the legislatures deciding this question. Nevertheless, the Court took it upon itself to find that such executions were cruel and unusual. If you look at the opinions they don't follow the this is the statute and this is what the Constitution says about that model. One key indicator that they are common law decisions is their appeals to persuasive authority. Personally, I could care less if persuasive authority comes from Wyoming or East Timor; if a court is appealing to it that court is not deciding things per the words in the constitution. It is justifying a change in the common law.


Anonymous said...

As always, good stuff Ken.

I have followed up with a bit over at my blog here


Anonymous said...

If the majority of Americans are still in favor of the death penalty, and therefore do not find it not cruel and unusual, on what basis can a judge on the supreme court rule it is and therefore go against precident? Because the crowd he runs with thinks it is? Why should their views prevail over the majority of the citizens? Maybe there is some legal thing I don't see here.