Last, but certainly not least, is the question of how the Constitution of the United States should be interpreted.
THE DECLARATION OF INDEPENDENCE
First, for the best interpretation to take place, one must view the US Constitution from the perspective of the principles of the Declaration of Independence. Since the US Constitution was the imperfect attempt at creating a system in harmony with those principles, it would be illogical to then turn around and view the document divorced from those very principles. Even the Framers themselves tied the US Constitution to the Declaration by the dating of the document.
Certainly, the principles behind the Declaration of Independence are the correct standard by which any government should be compared, including the US Constitution – and therefore, those principles should be the primary mode for constitutional interpretation.
Thus, if the desire for good Constitutional interpretation is present, it is recommended to first study the principles of the Declaration of Independence. The US Constitution is only as good as it is in harmony with those principles; with the most defensible portions, based on truth, being those in which are actually in harmony with those principles, with the the least defensible portions being in contradiction to those principles.
THE FALSE ALTERNATIVE OF “ORIGINAL INTENT” AND THE SO-CALLED “LIVING CONSTITUTION”
In terms of constitutional interpretation and theory, often the mainstream narrative is between Original Intent – or the intent and extent of the framers original intention in drafting the Constitution, and the so-called “Living” Constitution – or the view that the document is not limiting in feature, and thus can be molded based on the relative views and agendas of state officials’ assertions pertaining to, and/or interpretations of the desires of, the populace.
The Constitution is not simply a historical document, but a charter of moral commitments based on principles that are just as applicable today as they were 225 years ago. Therefore, it is herein asserted that the narrative above (namely, that of original intent vs. the living constitution) is a classic A or B fallacy; A false alternative which poses two wrong-headed arguments that both ignore a real benefit of a written Constitution based on principle, as opposed to what is merely historical precedent, often based on political expediency.
First off, in studying the journal of the Convention itself, as well as the debates surrounding ratification – it does not seem at all the case that the framers “original intent” was to produce a purely historical document by which to bind future generations to their own personal opinions as to their welfare, based on what is codified in the Constitution itself. Why even allow for an amending process, for example, if that were the case? And secondly, merely because the Constitution clearly has a basis in limiting principles – based on the assumption of objective truth (“the Laws of Nature, and of Nature’s God“), and not moral/legal relativism – does not mean that the US Constitution, or the principles behind it, should be accurately considered “dead”, as opposed to “living”.
THE “LIVING CONSTITUTION”
As to the point of “living” or loose constructionism – which, unfortunately Alexander Hamilton, himself championed in his opinion in support of the National Bank when it suited him politically (even though the view is contrary to the views he perpetrated in The Federalist) – the simple fact of the matter is that if the Constitution can mean anything, then it means nothing!
In fact, the reasons in support of a written constitution are hollow, if a relative standard of rightness was the basis of the very same written document. The document uses words, and those words have meanings, and somewhere in those meanings are the concepts themselves that are the real issues that are worthy of notice and debate. And honestly, if the Constitution can mean anything, or if the principles by which we interpret the document change (that is not to say that what we interpret cannot change, but that the underlying principles by which we interpret should not change) – then why even have a Constitution at all, let alone one that is written?
As has already been stated in the first section, it should be true principles that are the basis of proper Constitutional interpretation, and not people or groups thereof. The basic flaw of the original intent doctrine is that not only does it come with the flawed assumption that it was their intent to bind us to their own opinions – but that with this interpretive mode comes a blatant double-edged sword. Assuming original intent, the Constitution will only be as correct as far as they were correct, and thus, it will be wrong as far as they were wrong – without any recourse due to the inability to interpret otherwise. This is even worse than a situation when, for example, someone who only quotes Thomas Jefferson will only be right when he was right, and wrong when he was wrong – due to the wide felt consequences of such a general acceptance as a legal mode of interpretation and application.
The principles of the Declaration of Independence themselves should be the standard, and not people. Truth, in the end, is it’s own authority – regardless of the right/wrong opinions different men may have regarding it, including the Framers.
Was the purpose of Constitutional interpretation intended to merely be made up of historical research – or to be an analysis of truths which were to be the basis of the moral commitments behind the Constitution? Another way of looking at this is this: Was the Constitution of United States, and the Bill of Rights which were added in 1791, ends, in and of themselves, or were they attempts at a principle-based means to aid in the end of the attainment of a more free society?
This is not to state that historical analysis is not a factor (which is certainly not the case) ; but merely a secondary one to that of the principles of freedom themselves. It is merely to admit fragility in the limited understanding of man at any time, and to thus, seek the objective reality around us, which is eternally superior to any potentially limited and incomplete view of it.
“The PHILOSOPHIC APPROACH”; Conclusion
Professors Sotirios A. Barber and James E. Fleming, in their book Constitutional Interpretation, quote a very pertinent analogy from the legal scholar Ronald Dworkin, which is definitely worthy of quotation:
“Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt have in mind examples of the conduct I mean to discourage, but I would not accept that my “meaning” was limited to these examples, for two reasons. First I would expect my children to apply my instructions to situations I had not and could not have thought about. Second, I stand ready to admit that some particular act I had thought was fair when I spoke was in fact unfair, or vice versa, if one of my children is able to convince me of that later; in that case I should want to say that my instructions covered the case he cited, not that I had changed my instructions. I might say that I meant the family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind.”
Then, to quote, in part the commentary following the analogy: “Dworkin points out that had the children’s thinking for themselves not been consistent with their father’s instructions, he would have meant something quite different from what he said. He would not have meant not ‘treat others fairly,’ but ‘do as I say fairness demands.’ In the latter case, what’s uppermost in the father’s mind isn’t fairness or his children’s being fair or their reputations for fairness; it’s his authority over his children.” (pp. 28-29)
The professors then go on to argue for a philosophic approach to the constitution, based on it’s not being simply a historical document, but a document of commitment to abstract principles. And truly, there is merit to the argument.
Let’s take the example of “free speech”, as found in the First Amendment. If we were to limit our interpretation of that term to merely what the Founder’s had, or even could possibly have, in mind at the time (setting aside even the issue of determining which founder) – then the protection would obviously not apply to any of the modern modes of communication due to their not even existing in 1791. Yet, if we take the concept of free speech, and not merely the framers/ratifiers respective conceptions of it, then the principle would apply just as much today as it did in their day. Taking the concept, as opposed to their historical conceptions of it, would assume an approach to the Constitution based on a moral commitment to things such as “free speech”.
Therefore, it is a principle-based, or more specifically, a Truth-based philosophic approach which is needed for a correct understanding and interpretation of the Constitution of the United States.