During a class discussion on the interpretation of the Constitution, a student humorously stated that as long as the Supreme Court’s decisions were in alignment with their own views, then the process of how the Court came to that decision didn’t matter. However, just like in sports, your team is not always going to win; meaning that the how of interpretation is just as important, if not more, than they actual decision itself. Justice Antonin Scalia in his book A Matter of Interpretation even argues that, as a whole, the American judicial branch has “no intelligible theory” on the process of interpretation.
In my opinion, this is a bit of an exaggeration, as there are many theories of interpretation. I think that Scalia’s main beef is more about the consistency of interpretation, with textualism being the somehow obvious theory of choice. Strong proponents of textualism, such as Scalia, argue that interpreting the Constitution is simple. If ever an issue should arise as to the constitutionality of a statute, a judge would simply read the statute, presumably understand what it means, cross reference it to the Constitution, presumably understanding what that means, and said statute would either receive a ‘yay’ or a ‘nay.’ As stated by Scalia, interpretation by textualism takes the judge out of the decision, which disallows power grabs by judges to create court legislation. “…I think [common law] frustrates the whole purpose of a written constitution.”
However, this vastly oversimplifies the 8,000 word United States Constitution. While there are some very specific sections of the Constitution, it often ambiguous and can, at times, embrace generalizations. One example would be the freedom of speech and the recent Citizen’s United case. The Supreme Court found that the 1st Amendment provides corporations the ability to spend limitlessly in political elections as it is a form of speech. Another example, the word use: In Scalia’s book, he mentions a case a statute gave an extended punitive penalty if arms were used in the purchase of illicit drugs. The defendant used a gun as barter for the purchase of illicit drugs. The Court found that this use fell under the jurisdiction of the statute and the defendant would therefore receive the extended amount of prison time. Scalia dissented, saying that the use of a gun is clearly defined for what it was intended to do, i.e. shoot and kill. I, personally, agree with Scalia with this, although I do think that Scalia is breaking his own rules of textualism in this case. I believe he was looking at the intentions of the legislature, which is something that Scalia actually argues against doing.
Justice William Brennan Jr. also finds flaw in exclusive textualism. He argues that if textualism is exclusively used, than important substantive cases would be both ignored and dismissed by the Courts, even if the law at question led to the tyranny of the majority. “Unabashed enshrinement of majority will would permit the imposition of a social caste system or wholesale confiscation of property so long as a majority of the authorized legislature do by, fairly elected, approve.” Scalia also admits to this flaw of textualism, however he embraces it, saying that it is not the judge’s place to decide if laws, created by elected officials, are foolish or not. This even abates the counter-majoritarian problem, in that the appointed, i.e. unelected, Supreme Court justices would not create legislations, leaving law making to the elected representatives of the people, the Congress.
I again disagree with Scalia on this. First, I don’t believe that there was ever a counter-majoritarian problem to begin with. Justices are appointed by an electorally voted president, and then confirmed by direct elected representatives of legislature. I actually think it is a good thing that justices cannot be changed by campaigning. However, while the counter-majoritarian problem is solved in Scalia’s eyes, an even larger issue remains. Progress and social change would be virtually impossible if textualism was the exclusive theory of interpretation. Brennan argued that the continual change in societal needs and relationships will over time render textualism ineffective. The judiciary must interpret the Constitution in the present, with their contemporary mindsets, to promote human dignity in light of society’s changing values and needs.
An example is the developed right to privacy. While this right is not explicitly stated in the Constitution, it is implied in the Due Process Clause of the 14th Amendment as established by Griswold v. Connecticut in 1965. However, in 1986, the Court decided to revert back to textualism instead of contemporary ratification in Bowers v. Hardwick. By using textualism, the Court ignored the changing of societial needs and relationships, thereby throwing human dignity to the wind. The result was a hypocritical restriction on the right to privacy in the name of homophobia, with the case being overturned in 2003.
In conclusion, to even pretend that a judge can totally take themselves out of the act of interpreting is a unrealistic, as seen from a textualist perspective:
To in·ter·pret [in-tur-prit] verb
1. to give or provide the meaning of; explain; explicate; elucidate: to interpret the hidden meaning of a parable.
2. to construe or understand in a particular way: to interpret a reply as favorable.
3. to bring out the meaning of (a dramatic work, music, etc.) by performance or execution.
4. to perform or render (a song, role in a play, etc.) according to one’s own understanding or sensitivity: The actor interpreted Lear as a weak, pitiful old man.
5. to translate orally.