Constitutional Interpretation
The question of Constitutional
interpretation still has yet to be resolved.
Should only the explicit
commands of our nation’s Founding Fathers be
referenced in courts of law, or
can it be justified that an outside body should
extrapolate from the specific
text of the Constitution to define and defend
additional fundamental rights?
Further, if this body, namely the Supreme Court,
bases its decisions of
constitutional relevance not wholly on exact
interpretation, then regardless
of reason, are they wholly illegitimate? The
non-interpretive model allows
the Court to interpret beyond the exact wording of
the Constitution to define
and protect the values of a society. The question of
how the
non-interpretative model can be justified must be answered. Despite
much
remaining confusion between the two models, it is clear that history has
chosen
the non-interpretative model without which many of the defining points
in our
nation’s history would be unjustified. The overwhelming strength of
the
non-interpretive model is that it has allowed for many fundamental
decisions
that have served to protect the natural rights of the members of
this society.
If on the other hand the interpretive model is to be
accepted, a significant
number of decisions must be revoked. Briefly, the
majority of the due process
clause is no longer justified. Fair criminal and
civil procedures must be
dismantled since they have no specific textual
reference in the Constitution.
Freedom of speech, religion, and property
rights are all called in question.
Also affected is the legitimacy of
franchise and legislative apportionment
bodies of doctrine. The equal
protection clause of the Constitution when read
literally outlines the
defense of some forms of racial discrimination. However,
it does not
immediately guarantee the right to vote, eligibility for office, or
the right
to serve on a jury. Additionally, the clause does not suggest
that
equal-facility segregation is not to be allowed. Finally, the freedom
from cruel
and unusual punishments as outlined in the eighth amendment loses
its
flexibility. In this manner, a prima facie argument against the
interpretive
model is evident. Without the ability to move beyond the
specific wording, the
Court loses its authority to protect what society
values as basic human rights.
A fundamental question relevant to this
debate is whether or not values within
our society are time-enduring or
changing. When the Supreme Court makes a
controversial decision, does it use
the text of the Constitution to legitimize
principles of natural law, social
norms and arrangements? Or, is it acting as an
interpreter of slowly changing
values and imposing its views on society through
its decisions? The
Constitution is not a stagnant document; it is very much
alive and changing
with the times. Critics argue that the amendment process was
created to allow
change and that the role of the Judiciary does not include the
power to
change stated commands in addition to that of enforcing them. However,
in
many cases, the amendment process is inadequate for clarification of
issues
of human rights. A great virtue of the non-interpretive model is that
the Court
has the power to strike down unconstitutional legislation that
allows for the
Court to preserve the rights of the people.
Non-interpretation then requires the
application of understood codes, yet the
decision-making process is far from
mechanical. Critics contest that the
Court should not have the ability to
interpret societal values in a given
period of time. However, as has been shown,
history has upheld this
tradition. A number of questions now arise. Is it
practically wise to place
the responsibility to define and protect human rights
in the hands of Supreme
Court Justices? The answer lies in one’s
interpretation of history. While it
is true that the Court has made decisions
that reflect its own biases and
interests, it can be shown that the Court has
also consistently acted to
secure the rights of citizens and to limit federal
and state powers.
Following, is the definition and enforcement of human rights a
judicial task?
The adjudication of the Supreme Court over issues of human rights
as opposed
to this power residing in other branches of government must be
answered.
While there is no direct statement regarding judicial review in
the
Constitution, Marbury v. Madison is referenced here as the greatest
of all cases
justifying this judicial power. Thus arises the penultimate
question of the
authority of the Supreme Court. Constitutional adjudication
was allowed for
implicitly by the Founding Fathers. Only some of the
principles of higher law
were written down in the original document; however,
the distinction between
those laws protecting natural rights and positive law
was a well-understood one.
The ninth amendment allowing for due and
proper legislation is the expression of
the existence of further principles
of higher law not specifically written into
the Constitution. The Marshall
Court is a prime example of the manner by which
the Supreme Court would act
as the enforcer of both written and unwritten
natural rights. Through the
mid-nineteenth century unwritten constitutional law
was referenced during
many controversial debates, notably allowing for the
protection of contracts,
the institution of labor regulation, and the
restraining of taxation.
Continuing through the twentieth century, unwritten
rights were upheld
allowing for the advancement of laissez-faire capitalism and
restraining the
powers of state governments against impinging on the natural
rights of its
citizens. Finally, through the most recent decades, the
non-interpretive
model has allowed for the right to privacy, freedom of
expression, women’s
suffrage, de-segregation of schools, and general equality
for all citizens
under law. Hence, the Constitution itself is inadequate if read
in the
interpretative model, for it says nothing of many of the rights
American
society values as indispensable. There exists a long-standing
tradition of
belief in natural rights within American civilization. The
Constitution
textually defined only a portion of these and left the outline
of those
remaining to be defined and protected by an undeclared institution.
The court
filled this role through the function of judicial review and the
power vested by
the 14th amendment. The Founding Fathers had no intention of
declaring every
human right; rather, they created a system by which future
generations could
modify existing legislation in the context of contemporary
codes. Since that
time, a vast number of crucial cases in U.S. history have
required extrapolation
beyond the exact written words of the Constitution.
Without which the rights of
the citizens of this society would be far less
secure and well defined. Hence,
one recognizes the superiority of the
non-interpretive model. There are several
weaknesses to the
non-interpretative model of Constitutional review. One such
weakness deals
not with the content of declared rights but with the manner by
which they
come about. Despite that the equal protection doctrine, the right to
privacy,
and freedom of association are good and may be based on reason, they do
not
stem from interpretation of the written Constitution. Therefore,
critics
argue that they are wholly illegitimate. The Court now becomes an
arbiter of
fundamental value choices, and if these are defined by the
Constitution, the
Court need not intervene. Yet, it matters less how
these rights come about if
the majority of society recognizes them as
fundamental to a functioning
democracy. Additionally, one must return to the
recognition that values change
within a society and the Constitution cannot
fully allow for all rights needed
in contemporary society. Secondly, critics
argue that Marbury v. Madison is a
weak grounds for the non-interpretive
model. It is said that this decision
revolved around a highly technical
provision of the Constitution. Indeed, there
is merit to this criticism, for
the logic used by Marshall does not wholly
justify the use of this case as
the deciding factor in the outcome of Supreme
Court cases involving
constitutional interpretation. However, the 14th amendment
and the due
process clause further allow for such interpretation. Thirdly and
most
importantly, advocates of the interpretive model argue that the
Supreme
Court is not an unbiased institution and should not have the
power to define the
present values of American society. The outcomes of many
Supreme Court cases
have exhibited the biases of the judges deciding the
case. Critics then ask the
question, if the Court is also vulnerable to
opinions and biases, why ought the
Court to have the power to declare the
limits of natural rights and set down
national ideals? They argue that there
is little reason why the legislative body
should have this power. This is
perhaps the most difficult of criticisms to the
non-interpretive model.
Because the Court contends with this difficulty in
justification of many
decisions, it has used poor legal history and unclear use
of constitutional
language to support cases that could be justified just as well
with current
moral and political notions. While this tendency of the Court is
deplorable,
the truth is inescapable that the cases allowing for many of our
most basic
rights cannot be justified simply by reference to the
Constitution.
Hence, the Court has invoked the generality of the
Constitution to define and
defend vested rights and general principles of
democratic society. To conclude,
without the ability to move beyond the
explicit text of the Constitution, a
great number of crucial decisions in
U.S. history must be overturned. The simple
fact is that the interpretive
model cannot allow for the justification of many
of our most sacred rights.
While criticisms as to the justification of the power
of the Court to discern
the values of contemporary society are legitimate,
history as well as the
citizens of this society have long declared the
non-interpretive model
superior.