How to Interpret the Constitution

From The Wall Street Journal:

It is a testament to our nation’s commitment to the rule of law that, nearly 250 years after its ratification, Americans still argue about the Constitution. And as often as we argue about the outcomes of controversial hot-button constitutional cases, we argue about the methodologies that lead judges to make their rulings.

Today originalism—the idea that constitutional meaning should be considered as being fixed at the time of enactment—is the dominant judicial philosophy, thanks in part to decades of persuasive arguments put forward by conservative and libertarian lawyers and scholars. But there are different flavors of originalism, corresponding to different understandings of “original meaning”—the framers’ intent, a provision’s “public meaning,” or its expected application, to name a few—and various liberal lawyers and politicians propose their own interpretative methods, originalist or otherwise.

Cass Sunstein, a Harvard Law School professor, has written “How to Interpret the Constitution,” a clear, accessible survey that discusses originalist interpretations alongside their competitors. Among those nonoriginalist approaches are John Hart Ely’s argument for democracy-enforcing judicial review, Ronald Dworkin’s moral reading of the Constitution and James Bradley Thayer’s advocacy of extreme judicial restraint. Those are all varieties of what has been called “living constitutionalism”; they all allow that the Constitution may evolve in meaning without being amended.

Mr. Sunstein argues repeatedly that the Constitution “does not contain the instructions for its own interpretation.” To some degree, this is true: Though statutes often include definitions in their wording, the Constitution, for the most part, does not. For example, the first words of the First Amendment read: “Congress shall make no law respecting an establishment of religion.” Neither “respecting,” “establishment,” nor “religion” are set out with clear definitions, and the Supreme Court has entertained many possible meanings for each over the course of American history.

There is also no explicit constitutional command, in the text of the Constitution or in the works of the Founders, that those tasked with interpreting it must follow any particular method, either originalist or living-constitutionalist. “The idea of interpretation is capacious,” Mr. Sunstein writes. He therefore proposes his own first principle for choosing among methods: “Any particular approach to the Constitution must be defended on the ground that it makes the relevant constitutional order better rather than worse.”

Originalists propose that we resolve constitutional ambiguities by unearthing the law’s true and unchanged meaning. Mr. Sunstein, by contrast, proposes that judges and other constitutional interpreters rely on their “firm intuitions” to determine which constitutional rules are desirable and then see what theories might yield those rules. To do so, the author borrows from John Rawls, the giant of 20th-century liberal political theory, to endorse a methodology of “reflective equilibrium,” in which “our moral and political judgments line up with one another, do not contradict each other, and support one another.”

“In deciding how to interpret the Constitution,” Mr. Sunstein writes, “we have to think about what we are most firmly committed to, and about what we are least likely to be willing to give up.” He reveals how he would apply this methodology in his own case by listing his 10 “fixed points,” or constitutional outcomes that resonate with his own sense of rightness and justice. They are “clearly correct” propositions in the author’s view and include the contentions that “the Constitution does not forbid maximum hour and minimum wage laws” and that “the First Amendment should be understood to give very broad protection to political speech.” Of course, you might believe exactly the opposite. That, to Mr. Sunstein, is equally legitimate. One begins to wonder at this point how much “interpretation” exactly is going on.

Consider Mr. Sunstein’s claim that judges and justices should interpret laws in a manner that improves the constitutional order. Why shouldn’t we just allow legislators, who figure nowhere in Mr. Sunstein’s philosophy, to make legitimate changes to legislation when needed? We have mechanisms for improving our nation’s laws, and we have one for improving our Constitution. The Republicans who revamped our constitutional system in the aftermath of the Civil War by devising the Reconstruction Amendments—banning slavery, guaranteeing the equal protection of the law and enforcing individual rights against the states—understood that they couldn’t simply project their moral and political views onto the unamended law. They had to change the Constitution.

Like most nonoriginalists, Mr. Sunstein evades the key insight that gives originalism its appeal. It begins with a phrase from the Constitution that refutes Mr. Sunstein’s premise that the document doesn’t contain instructions for its own interpretation. “This Constitution,” it proclaims, “shall be the supreme law of the land.” The Constitution is a legal document, even if its provisions are sometimes more ambiguous at first glance than we would want a law to be. And laws have the crucial characteristic sometimes known as “fixation”: They remain unchanged until changed by authorized means. Constitutional interpretation must be constrained by this basic principle of legal reasoning.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)