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Approaches to Constitutional Interpretation

Instructor: Dr. Douglas Hawks

Douglas has two master's degrees (MPA & MBA) and is currently working on his PhD in Higher Education Administration.

The United States Constitution was written in 1787, but a thing or two has changed since then! This creates a potential problem: How do words written over 200 years ago apply to today's issues? In this lesson, we'll discuss some common approaches to interpreting the Constitution.

Setting up the Debate

The political system of the United States and the foundation of all U.S. laws come from the Constitution - a document that was written almost 230 years ago. But things have changed since then. The challenges faced by a newborn country and the world were vastly different than they are today.

This begs an important question: How do we apply the principles in the Constitution to our current day legal issues? Do we interpret every word literally? If so, what about the original Article 1, Section 2, that counted each slave as 3/5 of a vote? That was changed. So, if we can identify the intent of the authors to today's issues, what would the founders say about abortion, gun rights, or Internet surveillance?

Interpreting the Constitution is a very sensitive and controversial topic. As is normally the case in political issues, there are extremists on each side, and many more moderate solutions somewhere in the middle. Let's talk about the three primary views people take today - textualism, originalism, and the living constitution. After we define these three views, we'll analyze the Second Amendment using each approach.

Textualism

Textualism suggests that the meaning of a written law shouldn't consider the intent behind the law, or the circumstances being applied; instead, the text should be read as it is written and interpreted in the most reasonable way possible. It's not so strict as to assign the dictionary definition to each word, but it relies on the 'reasonable person's' interpretation of the text to determine its meaning.

Originalism

Originalism is an approach that looks at the Constitution and believes that it was written exactly as intended, and should be applied as written. As discussed earlier, this creates a problem with parts of the Constitution that clearly were based on practices that were acceptable in the late 1700s (such as the right to vote only given to white males who owned land).

But amendments addressed many of those issues, and the Tenth Amendment specifically says that any issue not addressed in the Constitution should be left to the states. So, an originalist would say we don't need to worry about applying the Constitution to changes in society, because the Tenth Amendment comes into play.

A Living Constitution

Those who believe in a living Constitution believe that the authors of the Constitution intended for us to identify what the Constitution says, consider other writings, and put those writings into the context of the time. When those intentions are identified, we can apply those same intentions to current day situations. Essentially this is the same as applying the 'spirit of the law,' even if it means we change or contradict the 'meaning of the law.'

An Example

To really see how each of these views can result in very different interpretations, let's look at the Second Amendment. It reads 'A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.'

Probably the easiest interpretation to apply would be that of the originalist. The Second Amendment says the people have the right to bear arms and that it's a right that can't be infringed. It also says a well-regulated militia needs to be part of a free country. So, the originalist can simply say guns are legal. They would claim that laws against guns infringe on the right to own a gun, so such laws would be unconstitutional.

While the originalist would have one perspective, someone applying textualism might have another opinion. It's pretty clear the Second Amendment sets forth the need, and allowance for, a 'well-regulated militia.' To most people, this refers to the armed forces. They are certainly well-regulated, have strict entrance requirements, and Congress and the President are both involved in determining when, and how, the 'militia' acts.

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