To be or not to be …(loyal to text and principle)

tobeornottobe

That which I am about to talk about is something that is very flexible. It means freedom, restriction, communication, ideas and expresses this and more. It can open doors and destroy relationships. Its excess can either be a meticulous maze or provide intricate detail.

Alright, enough, the suspense is killing me. I am referring to words. Even as most of our communication with one another in face-to-face interactions is body language, the words we use are also a vehicle for communication. Wait. Did you just notice how I used the word vehicle? How many automatically thought of a car transporting words or a word driving the car? Maybe you did, but maybe you did not. This is what I wish to bring to your attention. As my *cough cough* suspenseful introduction states, words are diverse. Remember how in grade school the teacher would assign homework in which the definitions of about 30 words would have to be written down, and as you were doing them, you would get to that one word that had about 50 million different definitions?

Haven’t had the privilege of coming across a word with more than three definitions? Try looking up the word “use” or “love”.

Definition of use

Definition of love

Now that we are all on the same page, one may be wondering where I am trying to get at. After recently having read Fidelity to Text and Principle by Jack M. Balkin, (here is a pdf of part of the text: BalkinJack_M._Balkin_Vanderbilt_Paper_7-2007) he talks about the interpretation of words, which he makes a distinction between two different kinds, “interpretation-as-ascertainment and interpretation-as-construction” (Balkin 5). This is where knowing the definitions of words becomes crucial as it assists in the interpretation, specifically to important documents, such as the Constitution, for example. Interpreting the Constitution, easy peasy right? Well, not so much. How to interpret the Constitution is something that is always debated. Placing to extreme groups, there is one side that adheres to the “letter of the law” where as the opposite site promotes the “spirit of the law”. Of course, there are those who fall somewhere in between, but the question is, what way is it supposed to be interpreted.

For example, Balkin brings to light how the regardless of the model chosen for interpretation, it may fall short. The context in which the Constitution was written greatly differs from the context that is now presented in 2015. I propose not claiming to one method and employing both to arrive to the best outcome. I believe in preserving what it means to be American by being open to change and welcoming a transformation that allows America to remain all that it stands for. It would have been impossible for our founding fathers to anticipate all that would come years after them. It was left in our hands to take the model they provided us with and implement it.

Let’s now take it back a few years back, to that of the time of our founding fathers. Would they tell us to maintain the “letter of the law” or the “spirit of the law”?

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3 Responses to To be or not to be …(loyal to text and principle)

  1. imdebock says:

    To be or not to be… (Loyal to text and principle)
    Thanks for your post. I will say that we respect both the “Letter of the law” that has to do with the literal interpretation of the words and the “Spirit of the law” that has to do with the drafters’ intent. We have seen so far that the interpretation of our constitution is divided according to the ideology, philosophy and moral belief of our justices. Some justices interpret the letter of law; others interpret the intent of the drafters and some belief in the common law. If these interpretations are currently implemented in our justice system, it is not near for compromise on the constitutional interpretation. As Balkin said “Fidelity to the constitution requires that we believe that the project is worth continuing and struggling over, even if we also believe that many current interpretations are wrong or misguided.” (P.4) the content of the constitution is not an ordinary word but a legal jargon that you and I are blind to the meaning. Balkin’s constitutional construction means the use of various modalities of interpretation which includes argument from history, structures, ethos, consequences and precedents (p.4). As you rightly put it “It was left in our hands to take the model they provided us with and implement it.” This is exactly what Balkin advise us when he said “Ratification of the Constitution is a project where any generation must do their part to keep the plan going (p.4). This means that it is left with our generation (me and you) to decide which way to follow, text or principle. I am suggesting that if we want to apply contemporary interpretation to our constitution, it should be based on our current society.
    Regards.

  2. cacunni1 says:

    I agree that we need to employ different methods of interpretation with regards to the U.S. Constitution. Even Scalia’ s record proves that he uses methods of interpretation that aren’t just the textualist method. He may claim that his decisions always follow textualism, but his record proves that he does not always do this as a Supreme Court Justice. If we believed in only applying one method of interpretation, we would only have one judge on the Supreme Court. That would allow for consistency in interpretation, but would not necessarily always bring the most favorable outcome in certain cases, not to mention that it would be completely undemocratic.

    However, if we apply different methods of interpretation to different cases, we must realize how inconsistent the decision making becomes. Scalia has a reason for proposing textualism. It is difficult to suggest that a justice system is just if by its very nature it does not have a set of rules that everyone is consistently judged by, but in this case I think that one has to take into consideration the human element. Human beings are fallible creatures, and that is why we live by the law. But in judging cases through the law, human beings are still expected to do their best to remain just when by their very nature they are fallible. As a result of this, the inconsistencies in interpretation of the law are unavoidable, even in Scalia’s textualism and Balkin’s interpretation.

  3. mbstanton says:

    I appreciate how clearly you express what stance you take on the textual and principle argument that has been outlined through our previous readings over the last few weeks. In reading the works of Scalia and Brennan, I found myself conflicted and doubtful in the effectiveness of either line of reasoning in its daily application. While it is understandable what risks are avoided in textual approaches that Scalia so strongly supports, it does not account for the changes in society and prevents appropriate justice. Brennan counters this belief in the opposite position. Balkin does appeal to a wide variety of people just in the fact that he is a safe route of interpretation. I don’t feel that the founding fathers would necessarily support Balkin’s decision of interpretation, but I also do not believe they would support Scalia or Brennan either.

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