Principles of interpretation

Wherever the process of constitutional interpretation goes on, it must be guided by some more or less articulate theory about the extraction of meaning from constitutional language. The interpreter cannot merely insist that the constitution means whatever he wants it to mean, or at least he cannot admit such an approach to the interpretative process. For the essence of constitutional purpose is to establish a degree of certainty, to impose limitations that will affect all alike, and to give effect to rules that are external to the value system of the interpreter. Various approaches to the establishment of stable constitutional meanings have been proposed.

First, it may be contended that the constitution should mean what its framers meant it to mean. In the United States it is a rare constitutional debate in which someone does not appeal to “the intention of the framers.” Thus, when the question is raised whether reciting prayers in public schools is an “establishment of religion,” it will be argued by some that this depends upon what the members of the first Congress meant by this phrase when they were drafting the first amendment. In the case of some provisions, the purpose of the drafters may seem reasonably clear from the language of the document or the historical data. But generally this is not true. Constitutional language is always the product of group effort and compromise and may be deliberately chosen to bridge over differences of opinion. The intentions involved are the intentions of many individuals who participated to a greater or lesser degree and at various stages in the process of constitutional draftsmanship and subsequent ratification. The proceedings of the Constitutional Convention are known largely through the incomplete notes taken by James Madison. Some of the men who participated in drafting the constitution were in wide disagreement about its intention within a few years.

Because individual and group intentions are difficult to determine, a second theory of constitutional interpretation proposes concentration on word meanings. As Justice Oliver Wendell Holmes put it, “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used” ([1885–1918] 1952, p. 204). This method employs somewhat narrower lexicographic skills as compared with the social historicism on which the first method relies. It is more rigorously confined by the document itself and more closely related to the processes by which the written instruments of private law are construed.

An alternative to these two basically historical methods of determining constitutional meaning is the approach of logical analysis, which was heavily used by Chief Justice Marshall in his great decisions. In Marbury v. Madison,for example, Marshall cites no judicial decisions to support his arguments and, although referring to “original intention,” makes no effort to quote contemporaneous evidence or opinion. His argument is primarily an exercise in logic. “It seems only necessary to recognize certain principles,” he says, “supposed to have been long and well established, to decide [the case].” The major principle is that the constitution is the supreme law of the land. The Supreme Court has taken an oath to uphold the constitution. The conclusion logically follows that when an act of Congress conflicts with the superior law, the Supreme Court cannot enforce it, but must declare it null and void.

This position has been so long accepted that the logic supporting it may seem unassailable. But it is equally logical to argue that the constitution is the supreme law of the land, and since the president has taken an oath to support the constitution he cannot enforce a Supreme Court decision that conflicts with the constitution, but must declare it null and void. The problem is simply not one to which logic can guarantee a correct answer. The limitations on the contribution of logic can be made clearer by stating a part of Marshall's argument as a syllogism.

Major premise: A law repugnant to the constitution is void.

Minor premise: This law is repugnant to the constitution.

Conclusion: This law is void.

Assuming the validity of the major premise, the soundness of the conclusion depends upon whether the minor premise is factually true. But logic cannot tell us whether a particular law is repugnant to the constitution. That is a matter of informed opinion and judgment. Justice Holmes, in one of his most famous passages from The Common Law ([1881] 1963, p. 5) disparaged the logical approach: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

It seems clear that no one rule of constitutional interpretation can be asserted to be the proper or sole approach to constitutional understanding. A constitution is more a political than a legal document. Consequently, all of the factors that go into the formation of divergent political preferences will also be operative in the minds of constitutional interpreters, be they executives, legislators, or judges. How a constitution will be read depends in large part upon the men who are doing the reading and how the world looks to them. The constitutional system is not separate from the political system, but a necessary part of it, performing the vital function of giving order and structure to the processes of policy formation. Holmes put the conception of a “living” constitution into eloquent language when he wrote:

… when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. (Missouri v. Holland, 252 U.S. 416, 1920)

Date: 2016-04-22; view: 778