Some Constitutional Interpretation Issues

Being the oldest document of its sort, the Constitution of the United States consists of general principles explaining the functioning of the three branches of government, and enumerates some fundamental principles, freedoms and individual rights of the citizens of the United States. Long since the early eighteenth century, however, questions arise concerning how to properly interpret the Constitution. Jurists and legal scholars have extensively debated the issue but still no indisputable conclusion has been reached. I will canvass the “originalism” approach to the Constitution, especially the ideas of Robert Bork. Due to a variety of reasons, then, I will argue that Bork’s claim for originalism is not the best approach to Constitutional quarrels.

The main aspect under discussion regards the participation of the Supreme Court – as the ultimate guardian of the Constitution – in the political and even policymaking processes. Robert Bork shows some concern when analyzing the invalidating power held by the Court – the power to struck down statutes if, in the opinion of the Court, they violate the Constitution. He argues that the Court, by exercising its power, may violate the essential Madisonian premise of majoritarianism: “in wide areas of life majorities are entitled to rule for no better reason than that they are majorities.”[1] He puts great emphasis on the legislative branch, which is to be responsible for shaping statutes and passing the body of law to be applied – and not interpreted, nor modified – by the Court. Bork condemns any decision of the Court that doesn’t have a valid theory derived from the Constitution itself – and he defends that the proper understanding the Constitution is attributed to the Founding Fathers of the document, and not to the Court. Any decision guided by moral principles other than the “original” ones are, in Bork’s mind, a reflection of judge’s personal preferences and beliefs, and that would be undemocratic and illegitimate. The Judiciary “has no role to play other than that of applying the statutes in a fair and impartial manner,”[2] he says. Not only the Constitution, Bork argues, but each amendment should be applied as that amendment would have been interpreted by people at the time of its ratification. This idea of legislative provisions as “motionless”, according to Bork, is a struggle toward neutrality in the application of the law. He says a judge should prefer a process of selecting values – those values being the ones chosen by the Founding Fathers – rather than one of constructing and articulating new principles.

In a review of Bork’s ideas, Stephen Macedo criticizes most of Bork’s attempt to focus on the concept of “historical Constitution”.  The First question that comes from that analysis is whether there can be any interpretative approach that is considered politically neutral. I answer negatively to that question, having in mind that the Framers were deeply inspired by the values of enlightment and that the Constitution is a political document. Although Bork may admit that the results stemming from originalism are political ones, he denies that originalism has political intentions. I have to disagree with that, for it seems obvious to me that Bork’s intention in his text is not to strive for a more just application of law. Rather, I suppose he tries to legitimate the actions of the legislative branch, not allowing the Courts to digress from the majoritarian opinion on a certain issue – and he argues that the decisions made by the legislative don’t need to undergo the process of being principled, thus legitimating any unjust provisions that may be drafted. His purpose in doing that, I think, is to maximize the possibility of conservative decisions in the Court – his critiques of the Warren Court are evidence that he disliked liberal approaches to Constitutional matters.

Further on Macedo’s text, it is argued that Bork claims for a historical understanding of the Court, but doesn’t present a true historical argument to support that claim. He rather focuses on the idea that the framers’ intention in writing the Constitution was for it to be interpreted as it would be in the time it was written. That argument on its own, however, doesn’t seem to be enough to prove his point, and the weakness in defending his views strengthens the perception that his intentions are more political than neutral. In the video documentary “This Honorable Court,” Justices are asked about constitutional interpretation. Justice Thurgood Marshal, standing on the Court’s liberal wing, promptly said that “they [the framers] knew exactly what they were doing, back then. They were editing a living document, and it is our job to keep it alive.” Justice Antonin Scalia, sitting in the opposite side of the Court’s ideological spectrum, rebutted Marshals views and argued that “the Constitution is a conservative document […] and it loses its value when we expand the meaning it originally had.” These two completely different views of the Constitution evidence how neutrality, in Macedo’s words, is inescapable.

If originalism is not the best way to approach the Constitution, and I argue it is not, how can this most important document be interpreted? To start shaping my argument – and solely for theoretical and introductory purposes – I shall draw on social scientist Michael Löwy and his book “As Aventuras de Karl Marx contra o Barão de Munchhausen” (The Adventures of Karl Marx against the Baron of Munchhausen).[3] The two main chapters of his work offer different takes on sociology of knowledge and apply it to Law. First, Löwy explains Max Weber’s and Karl Popper’s idea of Positivism as being science free from value judgments. Applying science is, for positivists, observing the immutable laws of nature; those laws are independent from human action, and social sciences must be limited to the explanation of the universal truth. Comparing this assessment to the situation under discussion, the Framers would be the ones who set the “laws of nature”, thereby reaching a universal, undisputable truth. The job of judges and jurists is to observe those laws and apply them without taking new values into account. It is the originalists’ take on the matter.

The following chapter canvasses the movement called Historicism and draws on Karl Mannheim mostly. According to this theory, every cultural, societal, and political phenomenon needs to be comprehended in its historicity. By that, Löwy means that no aspect in life is “politically unfurnished,” and nothing can be neutral. To better understand this chain of thought, Löwy talks about pure light going through a prism, thereby offering different perspectives of the same object, depending on where the viewer is standing. Using these concepts to analyze the Supreme Court, the Constitution shouldn’t be interpreted but taking into account the social, cultural and political environment surrounding it. Every Justice steps into office after decades of legal experience, and I don’t believe any of them can judge cases without considering the view they have of the “prism”. The Constitution is highly political, and its interpreters can’t deny the diversity of opinions regarding a controversial matter; Bork’s argument that, instead, they should all adopt a single set of fixed values – the understanding of a provision at the time it was enacted – seems to be embedded in his own political preferences. As Löwy concludes this confrontation o theories by saying that historicism is a better explanation of the phenomena of nature, we are once again led to conclude that politics are inescapable.

Bork’s theory can be better understood if we take some cases as examples. Firstly, and in my opinion most notably, there is Griswold v. Connecticut (1965). This seemingly normal case involving the right of a couple to use contraceptives turned to be a landmark, due to Justice William Douglas’s opinion. He argued that the “right to privacy” was found in the “penumbras” of some constitutional protections. These penumbras are intermediate, “grey” areas between constitutional protections. By implementing this rationale Douglas managed to give the Justices somewhat unlimited power to define which rights are comprised in the penumbras. The consequences of the decision in Griswold were of huge importance: judges could now use this broad notion of penumbras to protect individual rights and civil liberties that had never before been thought of being covered by the Constitution. Robert Bork fiercely opposed this approach. He argues the Griswold decision is unprincipled (and therefore illegitimate), and that it leaves us with little understanding of which cases may or may not fall under the protection of the right to privacy. Moreover, his minimalist view of the Constitution leads him to say that if there is no reference to a right to privacy in the constitutional text, this protection should not be inferred by the judiciary.

In Lawrence v. Texas (2003), the Supreme Court struck down a Texas statute that criminalized homosexual sex. In the majority opinion, Justice Anthony Kennedy spent some time criticizing the findings in the overruled case Bowers v. Hardwick. In Bowers it was stated that homosexuality was a historically condemned practice, and Chief Justice Burger wrote that decisions regarding sexual conduct had long been subject to state intervention in Western civilization. Relying upon the Fourteenth Amendment’s due process protection, Kennedy argued there was no legitimate state interest justifying intervention on private lives. Justice O’Connor concurred, rejecting the due process approach and preferring an equal protection rationale. It is my opinion that Robert Bork would disagree with both votes. He doesn’t conceive judicial power to invalidate legislative acts, and his theory doesn’t support the introduction of new values by the judiciary. For Bork, if there is no clear unconstitutionality with the anti-sodomy statute, there is no reason for Justices to create an “unprincipled” rationale in order to fulfill their personal political agendas. He sees these decisions as a realist scholar would: “decisions first, principles later”.

The consequence of applying originalism, at least in the cases presented, would be that the Court would be very conservatively shaped. Most of the landmark cases granting individual rights rest on non-originalist interpretations; it is easily perceived that interpreting the Constitution in accordance with the meaning it has at the time the case is decided – rather than at the time the provision was adopted – will lead to more up-to-date decisions. Some would argue that judicial discretion can produce unwanted results, but I fail to see how originalism is a neutral alternative. The defenders of originalism are often the most conservative judges sitting in any court. How can one say that originalists are not pursuing their own political agenda? Another consequence of originalism, one more institutional than ideological, is that even the power of judicial review (granted in Marbury v. Madison, 1803) can be questioned; why would judges need such power, if their duty is to impartially apply the law? If only the legislative branch is to be responsible for shaping the legal standards of the country, why concede any power to the judiciary? This question leads to its counterpart: if one is to disagree with Robert Bork’s originalism, can it be explained why courts still turn to the Constitution, rather than applying their own and political views? This dilemma can be solved by answering a much more general and basic question: What is the ultimate purpose of a Constitution? A brief historical insight is needed, so that I can prove my point.

Constitutional theory as we know it began with Emmanuel Joseph Sieyès, in his Qu’est-ce que le tiers état?[4] (1789, “What is the Third Estate?”). He explained that the royal family and the clergy should not hold the legal power in pre-Revolution France. Instead, the nation – ultimately meaning the bourgeoisie – had the constituent power and had to shape the French Constitution according to its needs. It was a clever political mechanism that would allow the revolutionaries to use whatever language it wanted in drafting the Constitution. The words in that document, he argued, were to be respected blindly, despite eventual changes in the social environment.

The next significant contribution to the theory of the Constitution was made by Ferdinand Lassalle. He was deeply involved in the unification of Germany, and in Über Verfassungswesen[5] (1862, “On the Essence of the Constitution”) a clear constitutional philosophy can be found: he sets the difference between what he called real factors of power and written constitutions. The former are all the social and economic aspects of a region – especially the army and industry, while the latter are what Sieyès had described as the only constitution to be respected. Lassalle argues that no written text has any validity if it doesn’t respect the real factors of power. There is, for him, no point in trying to use the language of a legal text to shape a future social condition; rather, social changes are to be done outside the legal context, and when those social goals are reached, a new text can be written.

The complete discrepancy between Sieyès and Lassalle framed the two possible modern constitutional understandings: formalism and materialism. Formalists would argue, as Bork does now, that the written text creates the only principles and values to be respected when deciding a case. Materialists, on the other hand, take into account all the societal facets at the time a Constitution is being interpreted, and may sometimes ignore the legal text if needed. It is my opinion that the equilibrium regarding that turbulent matter was only reached after Hans Kelsen (probably the fiercest formalist in constitutional theory) and Carl Schmitt (a pre-materialist, famous for his book “A Theory of the Constitution”) analyzed the German republic of Weimar. This constitutional democracy was to be severed by Hitler’s Nazism, but its importance shaped decades of constitutional analyzes. German judge and jurisprudence scientist Konrad Hesse, I believe, is the theorist that can bring the most fulfilling answer to the dilemma I have posed above.

In the 1999 article Grundzüge des Verfassungsrecht der Bundesrepublik Deutschland (“The normative force of the Constitution”), Hesse puts equal emphasis in the formal and material aspects of a Constitution. He labels formalism the “normative force”, and materialism the “will for constitution” (wille für Verfassung). His opinion is that a constitution has a dual purpose. The normative power embedded in the constitutional text is very similar to Robert Bork’s opinion: by adopting an amendment or passing any sort of legislation, the legal text needs to be interpreted according to its language by the time it was drafted. The will for constitution, on the other hand, is the way Hesse explains the changes in society that may claim for a changing of meaning in the Constitution. Certain amendments may use broad terms, and these terms may experience a change in meaning according to transformations in the social context. Bork would argue that those transformations shouldn’t affect the way judges interpret legal documents, but Hesse begs the differ: “A Constitution is not separated from the concrete historical reality of its time. However, it is not to be conditioned by this reality.”[6] The equilibrium between the written Constitution and the “constitutional reality”, as Hesse names it, must be carefully maintained in order to assure more just decisions.

Some other scholars may offer different reasons to why the judiciary has a right to exercise its review power. Edward Levi argues, in his Introduction to Legal Reasoning, that the ambiguity and broad terms used in the Constitution of the United States are a necessity, and if “there has been an incorrect interpretation of the words, an amendment would come close to repeating the same words. What is desired is a different emphasis, not different language.”[7] This approach shows that there is a wide range of possibilities when it comes to arguing about the Constitution. I believe, as Stephen Macedo does, that it is virtually impossible to escape politics in this matter – and I do not seek a completely impartial theory by exposing my constitutional theory approach above. The problem under discussion needs to be dealt with, I argue, having Konrad Hesse’s idea of equilibrium between the 1789 Constitution (and subsequent amendments) and the current understanding the judges have of the social environment. The reason why Supreme Court Justices are chosen among the greatest legal minds in the country is exactly because it is believed that they can use their abilities to make significant changes in the American body of laws, whenever they are thought to be unjust. I have relied on Stephen Macedo’s critiques of Bork, on my short insight of the history of Constitutional theory and on my beliefs that the Constitution, being a guiding document for the rest of the legal system, is a living piece of legislation that needs to be reinterpreted when needed. Due to these reasons, I argue that Bork’s originalism is not the most suitable approach for Constitutional issues.