Part I on interpreting our Constitution: the traditional approaches

I had a dream!

No, not that dream. Instead, it’s a dream that haunts many a law prof who teaches or taught constitutional law, as I did.

The classroom gave me a nice little platform to criticize our lofty Supreme Court.

Fun stuff, but it left me with an unspoken, nagging question to myself: “OK, wise guy. Enough of your carping about how other people do it. What would you do if you were on the Court? How would you interpret the Constitution?” An occupational hazard, leading to my nighttime fantasy.

In the dream, my phone rings. “Moskovitz? This is your President. I’m appointing you to the U.S. Supreme Court. Get ready to explain yourself to the Senate.”

I woke up. Just a hallucination, of course. But wait! Maybe a premonition! Just in case, I’d better put my disjointed thoughts about Constitutional interpretation into some kind of order.

Let’s start with how most Justices usually do it.

Today, our conservative Justices lean towards two related methods of interpretation: “originalism” and “textualism.” Originalists seek the “original” meaning of certain words in the Constitution, as used by the Framers who wrote or voted for them. Textualists say the words themselves control, regardless of historical or current context. Both methods purport to seek the intent of the Framers.

Under the conservatives’ approach, Roe v. Wade was wrongly decided. Textualists note that the word “abortion” does not appear in the Constitution. Originalists note that there’s no historical evidence that the Framers who adopted the 14th Amendment “due process” clause intended to prevent states from banning abortion.

“Progressive” Justices sometimes prefer a sort of “living Constitution” – one that evolves with changing moral standards and cultural norms. And most progressives take a “pragmatic” approach, giving strong consideration to the practical impact of an interpretation on current economic and societal problems. While they sometimes employ textualism and originalism themselves, they are skeptical about them, occasionally seeing “originalism” and “textualism” as mere gimmicks to overrule or undermine cases that conservatives don’t like.

“Originalism” and “textualism” might indeed be gimmicks - at least for some of the Justices some of the time. I was disturbed by Justice Scalia’s ruling in District of Columbia v. Heller (2008) 554 U.S. 570, where he purported to employ the textualist/originalist approach to conclude that the Second Amendment guarantees an individual’s interest in keeping a handgun at home. The Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Scalia carefully parsed these words - and “found” that the Framers intended to bar the government from outlawing possession of guns in the home.

I wasn’t persuaded by his brushing off the “well-regulated militia” language. My research indicates that “well regulated” meant a sort of army. “Well regulated militia” suggests that the Framers meant only to prevent the feds from disarming the state militias (which were then used by Southern states to suppress potential slave rebellions and to catch escaping slaves), rather than protect an individual’s interest in owning a handgun. So maybe Scalia’s high-minded originalist approach was indeed a vehicle to further his love of guns. (Scalia was an avid hunter).

Of course, neither Scalia nor I are trained historians. Either (or both) of us might well get it wrong. This is one of the downsides of too much emphasis on the originalist approach – especially when we are trying to find the intent of multiple people centuries ago from a scanty and confusing historical record. And either or both of us might tend to cherry-pick “evidence” that supports our biases.

The Court’s more recent decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022) 142 S.Ct. 2111, makes things even worse along these lines. The Court held that the history of state regulation of guns – or the absence of it – is relevant to the meaning of the Second Amendment – even history occurring after the Framers adopted the Second Amendment! So much for Scalia’s “originalist” approach. But if the new test gets the Court where it wants to go, I guess that’s the sort of stunt they’ll continue to pull. Not for me, thank you.)

But is there a legitimate reason for employing textualism and originalism correctly? Maybe there is. Perhaps the rationale for Marbury v. Madison - which gave the Supreme Court the last word on the meaning of the Constitution – affects how it should go about interpreting it.

Here’s what I mean.

When teaching constitutional law, I began each semester by telling my students: “In every case we read, the Supreme Court struggles with one basic issue: in our democracy, when should unelected judges overrule a choice made through the democratic process by officials elected by the people?”

It’s easy to miss this perspective when assessing a particular decision. One is tempted to characterize the issue in Roe v. Wade as “What is more important: the life of a fetus or a woman’s right to choose?” Or the issue in Brown v. Board of Education as “Should black kids have the right to go to an integrated school?”

But underneath these questions lay the more basic issue: who decides these questions – the people whose elected officials enacted these laws, or a Court of unelected judges?

In other words, what is the proper role for a judge in a democracy?

I start from rock bottom: “Who should decide what the Constitution means?” Well, the Constitution itself should answer that question. But it doesn’t. The Framers left it out.

Today, we unthinkingly assume that the Supreme Court must be the final arbiter of the meaning of the various provisions of the Constitution. But why? Just about every elected official takes an oath to support the Constitution – the same oath the Supreme Court Justices take. So why not just let each elected official decide what limits the Constitution places on their powers?

This sounds strange to American ears, but that’s pretty much what the Brits have done. Their courts do not slap down Parliamentary enactments as inconsistent with U.K.’s unwritten “constitution.” It’s up to each Member of Parliament to consider the constitutional question when he or she votes on a particular proposal.

So how did we come to do the opposite?

It all started back in 1803, when the Supreme Court arrogated this power to itself, in Marbury v. Madison, 5 U.S. 137 (1803).

Next column: How Marbury suggests how a judge might go about interpreting the Constitution.