FREE ESSAY ON CHECKS AND BALANCES

CHECKS AND BALANCES

Constitutional Interpretation 
The problem of interpreting the Constitution and framer's intent is a constantly
permeating and troublesome question in the minds of Supreme Court Justices, judges,
prominent politicians, and policy makers alike. It is a problem that has been pondered
for years and years in the courtrooms and on paper with no real conclusion. One such
essay arguing this dilemma is "How Not to Read the Constitution" by Laurence H. Tribe and
Michael C. Dorf, who explore the questions "Is reading the text just a pretext for
expressing the reader's vision in the august, almost holy terms of constitutional law?"
and "Is the Constitution simply a mirror in which one sees what one wants to see?"
(Tribe, 49). While Tribe and Dorf begin their article with a seemingly unbiased opinion
on the subject, by the end of the essay it is quite clear that the authors believe in the
United States Constitution as a living document which is vulnerable to interpretation and
changes with the times. There is much research citing evidence which both supports and
argues against the idea that the Constitution can be freely interpreted to adjust to
modern society. Neither of the two sides have very solid, concrete arguments. The
supports are all very porous and can be easily attacked by the other side. Therefore,
there is no right answer to the question of Constitutional interpretation.
In order to understand the topic at hand, one must first have a firm grasp on the
original framing of the Constitution. The Constitution was written in a time of national
turmoil. Bankruptcy and hunger were rampant throughout the country. The Articles of
Confederation, written in 1781, proved to be a failure and the politicians were under a
lot of pressure to create a functioning national government and a workable law for the
land. The Articles of Confederation laid down some of the fundamentals of our national
government, but still it had many flaws, such as an inability to regulate commerce and an
inability to tax, among others (Scholastic Update, 2). The main players in the organizing
and writing of the Constitution are Alexander Hamilton of New York, James Madison of
Virginia, and George Washington. They believed in a stronger national government and
Congress' right to regulate trade. In response to Shay's rebellion which consisted of
farmers protesting taxes, a convention was called for by Madison and Hamilton to be held
in Philadelphia in 1787. It was during this convention that the foundations for the
Constitution were worked out. A completely new government was created and put on paper
between May 25 and the final signing of the Constitution on September 17. The document
was debated for sometime between Federalists and Anti-Federalists, but in December 1971
ten Bill of Rights were added to the Constitution in order to give rights to the citizens
of the United States. This pleased both sides, and the Constitution was ratified
(Scholastic Update, 4). The document produced from this convention has been the effective
law of the land for over 200 years. "...out of the chaos of the 1780s emerged the
Constitution, perhaps the most effective model of government ever devised. It was written
by a small group of quarreling people under intense pressure. They knew how difficult
their job was--and that what they had come up with wasn't perfect. But they hoped they
had created something that would be a living document for future generations" (Scholastic
Update 2). The Constitution has been the center of many disputes as to how literally it
should be read and followed.
There is much evidence available which can point to the conclusion that the Constitution
should be seen as a living document. This means that lawmakers and judges can find
solutions to modern problems by taking the standards of the original framers, and
translating them into modern standards. " [The framers] took the records and experiences
of the colonial governments, the Continental Congress, the Articles of Confederation, and
all the hopes and dreams of those early colonialists and forged and instrument based on
individual freedom that is so vague and nebulous, yet so dynamic and flexible, it often
is referred to as 'a living thing'"(Rupert, 2). This "poetic license" can be a great
benefit to modern society. The living document theory is an idea which is popularly
supported by both political parties. This fact holds a lot of weight, because it is very
rare to have such bipartisan agreement. Even in Tribe and Dorf's essay, they state that
"The belief that we must look beyond the specific views of the Framers to apply the
Constitution to contemporary problems is not necessarily a 'liberal' position. Indeed,
not even the most 'conservative' justices today believe in a jurisprudence of original
intent that looks only to the Framers' unenacted views about particular institutions or
practices." (Tribe, 49).
The vagueness of the original Constitution brings up a few issues concerning the
legitimacy of the literal reading of the Constitution as it relates to modern times.
Since the Constitution was written at a time so different and so distant from our own
time, we have no way of truly knowing what the original understanding of the document
was. The meetings that were held to write the Constitution were not well documented, so
the discussions that went on between the framers are not known. This information would
greatly aid in knowing the original understanding. Besides the generic realm of the
original understanding of the Constitution, there are many specific issues which Tribe
and Dorf point out in their article. "[The Constitution's] Eighth Amendment prohibits the
infliction of 'cruel and unusual punishment,' but gives no examples of permissible or
impermissible punishments. Article IV requires that '[t]he United States shall guarantee
to every State in this Union a Republican Form of Government,' but attempts no definition
of republican government. The Fourteenth Amendment proscribes state abridgments of the
'privileges or immunities of citizens of the United States,' but contains no catalog of
privileges or immunities." (Tribe, 48). 
There are many issues presented to us today that the framers would never have been able
to fathom. An example of this would be the recent controversies over the censoring of
pornography over the Internet. The Internet is a medium for communication that was far
beyond the realms of imagination only twenty years ago, so how could the framers of our
Constitution possibly set any limits to freedom of speech over 200 years ago that would
be applicable to this new form of speech? The answer is that they simply could not. This
being the case, it is necessary for judges to be able to use the Constitution as a
blueprint, and to make decisions based on good judgment, not on laid out specific rules.

Even with all of these proofs, one of the most solid pieces of evidence that leads to the
conclusion that the Constitution should be used as a backbone for judges today is a
direct quote once taken from James Madison stating that future generations will need to
make "...useful alterations suggested by experience" (Scholastic Update, 4). One would
figure that if this came from the mouth of one of the original framers, that it is the
way it should be. It could mean that they purposefully made vague statements as mentioned
above in order to allow for interpretation. This is not necessarily correct, though.
There is also much evidence against this way of looking at the Constitution.
Some say that the Constitution should be taken very literally when relating to modern
days. One of the forerunners of this idea is United States Supreme Court Justice Antonin
Scalia. Justice Scalia has made many speeches and rulings following his belief that
"...the U.S. Constitution is not a living document, changing with the times, but should
be interpreted based only on the text as it was understood when it was written" (Singer
A5). Justice Scalia is certainly not the only believer in this take on the Constitution,
but he is one of the most prominent, modern, and not to mention vociferous opponents of
the living Constitution. 
One of the main arguments Scalia makes is that "...originalism has its imperfections, but
when compared with the non-originalism alternatives, it comes out as a 'lesser evil'"
(Murphy 16). In this, he is simply stating that neither idea is fully flawless, but that
after one weighs the pro's and con's of both sides, originalism comes out on top. There
are a few arguments for original intent which would seem to point to this conclusion. 
In 1845, Justice Joseph Story wrote "How easily men satisfy themselves that the
Constitution is exactly what they wish it to be" (Tribe 50). This brings up a large piece
of supporting evidence, which is also the biggest problem with Constitutional
interpretation, and that is that most judges use the living document strategy to read
their "own values and political judgments into the Constitution" (Murphy 13).
"Nonoriginalist approaches are praised because they enable judges to expand upon
individual liberty by divining rights that are only implicitly granted by the
Constitution. To achieve this benefit, however, a judge must depart from the text and
original understanding of the Constitution; having done so, there is no reason why a
judge may not just as easily contract or restrict those rights that are explicitly
specified and guaranteed by the Constitution" (Singer 14). Even by the definition of the
word interpretation, it is in fact, making the Constitution exactly what one wants it to
be. This can be a very dangerous power to put in a judge's hand. Political Scientist
Henry Jaffa writes "One would think ... that when Paul Revere called out 'The British are
coming' he meant they were coming to rescue us from French Philosophy" (Jaffa 38). This
quote serves the purpose to show that there are no limits to how extreme "interpretation"
can get; you just need a person who has an extreme imagination. In a speech at Washington
University, Justice Scalia was quoted saying: "You want a right to abortion? It's in
there! You want a right to die? It's in there! The only criterion, apparently, is what do
we care passionately about"(Singer A5). "
If judges are given the right to interpret the Constitution as they please, this is
insinuating that their opinion on what the Constitution is saying is better than the
original framers; that in some way we are more enlightened in this day in age than they
were over 200 years ago. In some ways this statement is very true. For example, we are
more technologically advanced, much more politically correct, and we have had those 200
some years to look back on and see what mistakes were made. The only problem with all of
this is that one would be assuming that things have gotten better since then, which is
not necessarily a true statement. "[The idea that societies get better] is not the
attitude of people who thought that we needed a Constitution in general and a Bill of
Rights in particular. They understood that societies do not always get better and better.
They can also rot" (Singer, A5). On the same note, who is to say that the morality of
society has grown better? Tests of morality, such as abortion for example, would probably
not have been within the moral compass of those who wrote the Constitution. Just because
it is morally in lines with a few judges today who can make it legal, does that mean it
is all right? This is a tough question to answer because if a judge is given the right to
interpret the Constitution, he or she will eventually be forced to make a major moral
decision. "Although nonoriginalist theories posit that the Constitution must evolve to
reflect the changes in society's 'fundamental values,' they cannot offer a principled
distinction between those values that merit inclusion in the constitutional scheme and
those that do not" (Murphy, 13). 
One of the most fundamental supports for the originalism point of view is that there
simply is not that often a reason to interpret the Constitution. The reason for this is
because the original text of the Constitution, without interpretation, provides enough
material to decide most cases. In its most basic form, the Constitution lays out all of
the necessary components to make a just decision. 
Both arguments are highly disputable because they each have their advantages and
disadvantages. Neither side is "without it warts" as Justice Scalia is fond of saying
(Singer 15). The non-originalist point of view is widely accepted in society, but that
still does not mean that the originalist point of view is incorrect. Supporters of the
living Constitution say that the Constitution is vague, but they just might not fully
understand the original intent of the framers. Even though the framers could never
comprehend modern issues and technology, the Constitution gives enough information to
decide these cases. This is the main problem with the ongoing argument about whether or
not, or how the Constitution should be interpreted. As one can see from above, there is a
valid response against each argument. This topic will continue to be discussed for some
time to come without resolve, until it eventually becomes invalid to even discuss it.