The War of Interpretations
The 2016 election was, in essence, not just a race to determine the 45th President of the United States—it was effectively a referendum on the Constitution itself. As the election matured, the two infamous contenders, Donald J. Trump and Hillary Clinton, essentially personified the dichotomy of statutory interpretation that has dominated judicial politics for decades. Mr. Trump, running on a conservative platform, advocated for an originalist reading of our fundamental law, while his opponent, ever professing a progressive credo, preferred a reading that held the Constitution as a document whose interpretation should continually morph in order to conform to evolving political standards. As nearly everybody alive today knows, now-President Trump controversially won the vitriolic election, and as a result, revivified an originalist approach that is so often criticized yet so seldom understood.
Of course, it is facile to argue that the modern application of law, to which caprice and complexity are intrinsic, should be informed by the unplaceable intentions of eighteenth-century political scientists, regardless of their documented brilliance. Judicial activists on both sides of the aisle have excoriated an interpretation that reads timeless words solely through an antiquated lens, and rightfully so; however, that is not the full and fair definition of originalism. While the so-called “original intent” of the framers is not realistically identifiable and therefore cannot be applied with confidence to cases arising under the Constitution, a concrete and consistent method of interpretation can be found in the text of the document alone. Indeed, by inferring intent from the definitions of words at the time of their penning, in addition to weighing grammatical and linguistic factors more heavily than personal opinion, one both avoids the controversial practice of attributing intentions to deceased writers and gains an elucidative understanding of a complex document often criticized for its abstract phraseology.
Such a solid method of interpretation resides in textualism. Originalism, its generic parent, diverges into two schools of thought: original-intent theory and original-meaning theory. While the two share certain important tenets—both intend to look back in time to draw meaning—they are starkly different in how such meaning is drawn. The former maintains that a modern understanding of the Constitution should be consistent with and rely on the intentions of those who drafted it. This method is routinely rebuked and seldom practiced for the obvious reason that asserts the impracticality of standardizing indeterminable intent. The latter, however, is much more reasonable: original-meaning theory, synonymous with textualism, directs interpreters to infer meaning based on the definitions of words at the time they were scribed. Because plenty of evidence exists for scholars to ascertain meaning, such as contemporary dictionaries, thesauri and documented updates to the rules of the English language, it should be no chore for justices to understand the purposes of clauses, including those written over two-hundred years ago.
Original-meaning textualists propound that words have definitions that are perennially fixed, or, if mutable, have changes that are logical and historically demonstrable. Thus every word in a dictionary has a meaning that is practical to derive, and when lexical inconsistencies cloud objective judgment and cause interpretative confusion, other linguistic and grammatical factors can prove effective at making difficulties resoluble. For example, if a contradictio in terminis (Latin for “contradiction in terms”) appears—such as a frustrating contronym or accidental oxymoron—a befuddled justice might consult a thesaurus to discover contemporary synonyms, analyze surrounding words in the statute to clarify context, or peruse old dictionaries to consider definitional changes.
A perfect example of textualism in practice is the 2008 Supreme Court case, District of Columbia v. Heller. In the landmark case, the majority opinion decoupled the personal right to keep and bear arms from active participation in a lawful militia, thereby eliminating a longstanding legal precedent that had held that civilians were only permitted to bear firearms if they were members of a militia. Whereas a critic of textualism would argue that the framers could not have anticipated the advancement of weaponry and therefore would not permit individual gun rights if given the opportunity to reevaluate, a textualist approach would equate “a well regulated militia” with “the right to keep and bear arms” and read “shall not be infringed” literally to secure defensive rights to citizens as natural constituents of militias, regardless of participation therein. To a textualist, the Second Amendment protects the natural right to self-preservation; to his or her challenger, the government grants the right and can take it away based on a whimsical and unprovable assessment of the framers’ abilities to predict technological evolution. The former is not only far more objective than the latter, it is more likely to secure rights to the people as well.
Another infamous case pitting textualism against its opponents was Citizens United v. FEC. The 2010 decision is easily one of the more unpopular in the modern court’s history—conservatives and liberals alike bewail its redefinition of campaign finance and reestablishment of corporate personhood—but the majority opinion, which read the freedom of speech as a fixed prerogative immune from federal encroachment, was arguably more in-line with the Constitution than an activist approach seeking to regulate private political participation. Although the outcome had far-reaching implications that the public continues to lament, it read the First Amendment with an objective perspective without purposive distortion and was arguably the fairest interpretation by any legal standard.
The most common counterpart to originalist textualism is purposive consequentialism. Former Supreme Court Justice Antonin Scalia, the creator of this label, defined it as “an interpretative theory that assesses the rightness or wrongness of an interpreter’s reading according to its extra-textual consequences”—that is, where interpretative contradictions might appear, members of the judiciary deem themselves free to speculate creatively and effectuate their personal moral doctrines. Consequentialism, typically paired with a purposive attitude that presupposes the popularity of judicial decisions, is much more prevalent throughout the United States than a purely textualist methodology. Because controversy is inherent in the interpretation of both the Constitution and statutes pursuant thereto, it is perhaps more scintillating to the noble interpreter to employ soapbox adjudication instead of an objective reading that might result in an unpopular decision. It is the aim of such practitioners, moreover, to construe the text of the Constitution to produce favorable results that seek to enact modern morality into immutable law and permanently establish new precedent without cumbersome deliberation; and while this approach appears more appealing at face value—especially to partisans who fairly decry congressional gridlock and bemoan the continued existence of traditional institutions—it is arguably a form of judicial overreach that enables the Article III branch to assume undue legislative authority. Granting interpretative power to nine unelected (albeit highly qualified) individuals via judicial review is enough power in itself. To take many steps further by unbinding objectivity from linguistic interpretation and enabling the bench to redefine words in order to produce favorable outcomes is arguably more characteristic of a banana republic than a constitutionally limited one.
Furthermore, when judicial activists on the bench practice consequentialism, they enable the federal government to both develop partisan biases in areas otherwise immune to political bedevilment and assume power not expressly delegated or cautiously implied by the Constitution. This started with Marbury v. Madison, which wholly invented a federal prerogative in judicial review; it continued with McCulloch v. Maryland, which stretched the elastic clause to permit the creation of a federal bank; and it climaxed with the most deplored case in American history, Dred Scott v. Sandford. Regarding the last of the three, although the Constitution clearly and uncontroversially reserves to federal government the right to exercise legislative and administrative control over newly acquired territories not yet incorporated into states, Chief Justice Roger Taney and his deplorable court ignored the law and conferred unfair advantage on southern states, thereby solidifying the heinous practice of slavery throughout the remainder of the antebellum era with no more than a stroke of the omnipotent purposive pen. To seek an interpretation from a constitutional clause’s apparent social or political objectives—or worse, as Chief Justice Taney did, to misconstrue it in order to enact a personal agenda—is to unfix words from their definitions and steal sovereignty from the democratic legislature.
In conclusion, and to clarify, the author is not suggesting that the members of the judiciary interpret the Constitution based on whimsically deduced intentions of long-dead politicians. Rather, these judicial demigods should rein in their political ambitions and base their decisions on objective linguistic diligence. The fact that clauses and statutes are necessarily drafted by multiple authors separated by time and distance often inhibits reliable interpretation, but attempting to clarify meaning by washing another’s words with personal opinions only serves to exacerbate misunderstanding. Hence one should avoid subjectivity and sideline personality; for a fair interpretation of the law depends on consistent and objective standards, however dull they might seem to the overambitious adjudicator. Such actors could benefit from Justice Scalia’s interpretative prescription: lexical aptitude, sound legal judgment, thorough linguistic research and, most importantly, the ability to suppress personal preferences regarding the outcome of cases over which they deliberate. True, purposive consequentialism in practice led to the widely celebrated decisions of Roe v. Wade (established reproductive rights) and Obergefell (established marriage equality); however, it also produced umpteen unpleasantries, including but by no means limited to Marbury (permanently solidified judicial review), McCulloch (permitted the creation of a federal bank), Dred Scott (prohibited blacks from becoming citizens), Korematsu (allowed the existence of race-based detention without due process) and Plessy (justified racial segregation). Mercuriality, therefore, should not be a characteristic of the highest courts in our land. Justices should instead stick with the boringly consistent approach of interpreting words the way they were written. Over time, consistent fair practice might solidify the victory of judicial objectivity and immunize it from quadrennial turbulence, thereby unpairing statutory interpretation from the decisions of an emotional electorate, as the authors of the Constitution intended.