Reference no: EM132742576

Our system of government is based on the Constitution. It outlines in general terms the powers of government and the rights retained by the people.

Among the problems with the constitution is the fact that it is inherently ambiguous. No one knows what it means, despite the fact that many people confidently assert their personal interpretation as "the meaning" of various provisions.

For example, Article 1, Section 8, Clause 3 assigns sole authority over "commerce... among the several states" (interstate commerce) to the federal government. But what does that mean? "Interstate commerce," according to the dictionary definitions of the words, means commerce between or among states, as opposed to "intrastate commerce," which would be commerce entirely within a state. So does the fact that a factory is inside a state mean it's "intrastate," and thus immune from federal regulation? (This is how the supreme court ruled until 1937.) Or does the fact that the goods produced in the factory are shipped across state lines mean it's "interstate." (As the court rules today, though the current governor of Texas would like to change that.)

To give one more example, what does "freedom of speech" mean? Again, we all know the dictionary definitions of the words, but the court has held that our speech is not really free in many instances. We can't joke about bombs at the airport. We can't yell "fire" in a crowded theater, when there's no fire. We can't say things that are false and harmful about other people. We can't send, or even possess, certain types of pornography. And there are, of course, many other limitations. So what does "free speech" mean? Who knows?

The same thing can be said of all powers and rights in the constitution.

So, we don't know what, exactly, the powers of the government are, and we don't know what, exactly, our rights are, in particular fact situations.

Our way of resolving this problem is that we have a supreme court to decide. The court hears and rules on dozens of cases each year, many of which result in more or less power for the government and more of less extensive rights for the people. But the members of the court are just people like us. And though they've spent a lot of time studying, they can no more answer all the questions presented to them than you or I could. At least not in a way that everyone will agree is "the meaning" of some power or right.

The best we can hope for is that people will accept rulings of the court, understanding that future rulings may change what the constitution "means," and they regularly have.

Given that we depend on the court to establish, for now, what the constitution means, how they interpret it becomes very important. There are many ways scholars think about how members of the court interpret the constitution. One common way to think about interpretation is "originalism" versus "living constitutionalism."

An originalist thinks we should try as best we can to get inside the heads of the framers in 1787 to figure out what they would have said in answer to a question, and do that.

A living constitutionalist thinks we should be mindful of changes in society since 1787 and use the basic principles outlined in the constitution to answer questions as they should be answered today.

Both arguments are made by smart people who want what's best for America and its people.

QUESTION: What do you think? How should judges interpret the constitution?