Kirsten Marquis Political Science 110 Professor Davis November 22, 2013 Interpreting the Constitution The Constitution

can be interpreted in many different ways, but what method of interpretation is fair? Associate US Supreme Court Justice, Antonin Scalia, argues that the only correct way to interpret the Constitution is how the original framers would have interpreted it. This doctrine is termed originalism. His initial claim is that originalism is not a new idea, that if we look back several years originalism was the only way of interpreting the Constitution. The Equal Protection Clause was enacted after the Civil War. A number of years later the demanding issue was womens suffrage rather than slavery. However, instead of a judge granting women the right to vote under the Equal Protection Clause, an amendment was adopted to grant that right. Scalia says the original way of changing the Constitution through amendments is much more flexible than broad interpretation as it allows change, complete and clear change, on the basis of persuasion. Today, many argue that the Constitution is said to be a living document, meaning that it changes according to the needs of society. Scalia holds firm in his belief that such an idea is absurd. Compared to a hundred years ago, today there are certain issues that hold no place in the traditions of America. For example, abortion and homosexuality are two huge issues that the Constitution cannot answer specifically. Another point Scalia makes is that limitation is eliminated, meaning that the Court no longer finds it necessary to use the text from the Constitution, or even traditional American values when judging these issues.

Another common misconception, according to Scalia, is that the living Constitution is liberal and being an originalist is conservative. One of Scalias stronger points is how he disproves this idea. He gives two examples, the case of Romer v. Evans and the case of BMW v. Gore. The outcome of these two court cases support opposite sides of the spectrum. In the first case, the liberals loved the courts interpretation of the Constitution. In the second case, the liberals hated the courts interpretation of the Constitution. Overall, the court doesnt favor either liberals or conservatives. Scalia said, It has nothing to do with what your policy preferences are; it has to do with what you think the Constitution is. Scalias final argument is the broadness of the living Constitution. He questions that if youre not an originalist, then what are you? He says, If you dont believe in originalism, then you need some other principle of the interpretation. The other side of the line has no rules to follow, no criterion to follow, and therefore gives no stability or reliability to the Court. On the other side, Associate Supreme Court Justice, Stephen Breyer, favors the idea of the living Constitution. To him, the Constitution is a single document designed to further certain basic general purposes as a whole, the key words here being basic and general. The Constitution is meant to provide a framework that can be applied to any question and bring about a reasonable answer. Breyers big argument against the originalists is that they cannot actually ask the framers what they would do today. Theyre simply not here. The purpose of the Constitution is to provide a framework for a democratic government. One of the most fundamental parts of a democratic society is that the people rule. Breyer says that a literal interpretation of the government contradicts the original intentions of the framers because only when the power is derived from the consent of the governed can the ideals of the framers be met. Breyer then twists the

originalists ideas on themselves by claiming that the framers intention, their ancient and unchanging ideals was to have a constitution that can change as society changes. The originalists claim that the interpretation of the Constitution might change the meaning of a law. Breyer explains the benefits of this with the case of Brown v. Board of Education. After the ruling in Plessy v. Ferguson, which contradicted the intent of the Fourteenth Amendment, the ruling in Brown v. Board of Education overruled Plessy in a way that changed the lives of Americans forever for the better by granting real liberty. Breyer emphasizes that to interpret the Constitution in any given circumstance, it is important to consider the consequences rather than just decide if a decision is good or bad. The subjective nature of the living Constitution raises many doubts. This argument, that a judge might be subjective, is countered by Breyers claim that the consideration of the outcomes of a decision will in itself constrain subjectivity. To further illustrate this point he explains how the First Amendment, which says, Congress shall make no law respecting an establishment of religion, can be interpreted in many different ways. In Texas and Kentucky religious questions were raised concerning the constitutionality of displaying the Ten Commandments at government buildings. In the end, the best answer was an opposite verdict in each state. This proves the importance of looking into the context of each issue. Issues are not black and white, therefore the interpretation of the Constitution cannot be black or white. In Scalias argument there are a few weak points. First, the way he talks about the living Constitution makes you think that it is a brand new idea. He says the originalists view is what weve had for two hundred years as if the idea of a living constitution was plotted overnight.

In reality, the methods of interpreting the Constitution have evolved since the birth of the Constitution itself. His assertion that the Living Constitution will destroy the Constitution is weakened in the fact that the Constitution is still effectively in use today. These different methods of interpretation have solved many complex issues successfully, and if destruction were inevitable, those successful cases might have already backfired. Another claim Scalia makes is that a more literal interpretation of the Constitution is more flexible, but he then states that a constitution is designed to produce rigidity. This is confusing as he doesnt make clear whether flexibility or rigidity is preferred. Moving on to Breyers argument, when he points out that in some cases laws have actually changed for the better because of their verdicts. In this argument, he skims over the harm caused in the case of Plessy v. Ferguson. The ruling in that case directly stifled the intent of the Fourteenth Amendment, complete equality, which hurt many people for many years. The harm caused by changing or overpowering laws from poor interpretation of the Constitution is prevalent in the nations history. Moving onto Breyers argument, he is very defensive when it comes to subjectivity. He gives several strong points why the interpretation of the living Constitution is, in fact, not subjective. However, in the middle of his argument, he slips in the phrase, whatever the risks of subjectivity are implying that their interpretation is, in fact, subjective. Both sides of this argument have their strengths and their weaknesses. I believe, however, that because people and nations change over time it is important to have a living Constitution. Every new issue is open-ended, therefore the law itself must be open-ended to properly address the issues presented in court.