FREE ESSAY ON CONSTITUTIONAL INTERPRETATION

CONSTITUTIONAL INTERPRETATION

Introduction
In this essay I will try to explain and critique the two dominant methods of
constitutional interpretation. Which are originalism and non-originalism. I will do this
by taking help from "How to Read the Constitution" by Christopher Wolfe, and different
source's from Internet. I will start by giving what Wolfe says originalism is, and then I
will give some background to other ways to interpret the constitution, and the founders
and interpretation and I will finish up with my view on originalism and non-originalism
and the critics to that.
Wolfe on Originalism
Wolfe says that originalism is a two-fold doctrine. First, it holds that the constitution
is generally intelligible and with effort its meaning can be understood, its meaning is
not simply and inevitable in the eye of the beholder. Second, it holds that in the
absence of a clear meaning- since language cannot be perfect and the framers did not
intend to provide rules for all possible future circumstances - the condition for the
exercise of judicial review do not exist. The second aspect of originalism is derived
from reflection on the foundations of judicial review. Judicial review is an implication
of the constitution, fairly read, but it is an implication with a definite from: judges
should prefer the constitution to act that is incompatible with it.
The Founders and Interpretation
Christopher Wolfe says that the difference of interpretation arise not from the
application of different rules but from different conclusions drawn from applications of
the same rules, he says that when he has this in his mind: The disagreement that quickly
arose on important issues of interpretation that the appearance of general agreement on
rules of interpretation was misleading.
The method of asserting the "objects," which are especially important to note in cases
where the words bear more than one meaning, is to examine "the subject the context, and
the intensions of the person using the worlds".
Certain historical considerations are essential. The words are to be understood by those
for whom they were written, and therefore we must know what those understandings where.
Christopher Wolfe believes that the framers would tend to give preferences in such cases
to the fair reading of the document itself.
To summarize, the approach to constitutional interpretation employed in the early years
of American government: an interpreter is to begin with the words of the document in
their ordinary popular usage and understand the in light of their context. That context
includes the words of the provision of which it is a part, but also extends to the much
broader context of the document as a whole. The deeper assumption underlying these early
rules of interpretation was a fairly traditional realist epistemology: that the
constitution has a fixed, determinate meaning intelligible to those who give it a fair
reading. Under modern assumption, a constitution is unavoidably made up or created by
interpreters, to a greater of lesser extent, as they go along. The framers of the
constitution, on the contrary, looked at the constitution as an intelligible fixed
standard that made possible a republican rule of law, rather than of men.
Literalism - Historical
Historical literalists believe that the contemporary writings of the Framers are not
relevant to any interpretation of the Constitution. The only thing one needs to interpret
the Constitution is a literal reading of the words contained therein, with an expert
knowledge in the 18th century meaning of those words. The debates leading to the final
draft are not relevant, the Federalist Papers are not relevant - only the words.
The historical literalist takes a similar look at the Constitution as an originalist
does, but the literalist has no interest in expanding beyond the text for answers to
questions. For
example, an historical literalist will see the militia of the 2nd Amendment as referring
to all able-bodied men from 17 to 45, just as in the late 18th century, and this
interpretation will color that person's reading of the 2nd Amendment.
Literalism - Contemporary
Very similar to an historical literalist, a contemporary literalist looks only to the
words of the Constitution for guidance, but this literalist has no interest in the
historical meaning of the words. The contemporary literalist looks to modern dictionaries
to determine the meaning of the words of the Constitution, ignoring precedent and legal
dissertation, and relying solely on the definition of the words.
Just as the historical literalist view parallels the originalist view, but much more
narrow in focus, so too does the contemporary literalist mirror the modernist; and again,
the main
difference is the literalist looks only to the words of the Constitution for meaning. To
expand on the 2nd Amendment example, the contemporary literalist will view the militia as
the modern National Guard, and this will color that person's views on the 2nd.
Democratic/Normative Reinforcement
Finally, the democratic interpretation is the last approach to interpretation. Democratic
interpretation is also known as normative or representation reinforcement. Democratic
proponents advocate that the Constitution is not designed to be a set of specific
principles and guidelines, but that it was designed to be a general principle, a basic
skeleton on which contemporary vision would build upon. Decisions as to the meaning of
the Constitution must look at the general feeling evoked by the Constitution, then use
modern realism to pad out the skeleton.
As evidence, democrats point out that many phrases, such as due process and equal
protection is deliberately vague, that the phrases are not defined in context. The
guidance for interpretation must come from that basic framework that the Framers
provided, but that to fill in the gaps, modern society's current morals and feelings must
be taken into consideration. Changes in the Constitution that stem from this kind of
philosophy will end up with principles of the population at large, while ensuring that
the framers still have a say in the underlying decision or ruling. This interpretation is
seen to enhance democratic ideals and the notion of republicanism.
Originalism
The job for the Judge here is to find the law. Look at the constitution test to see of
the meaning is clear, and if the meaning is clear then the case is settled, otherwise
they have to fund other means to fund what the law should be. They would look at the
intensions if the framers, the spirit of the constitution, look at judicial reviews, how
the ratifiers understood the constitution. 
Non-Originalism
The job for the judge here is to promote justice, her own values, economic and social.
They would look at the constitution text and imply it; the text is not tied to literally
interpretation. Their conception is that the judge interprets what is good for the
country, at any given time. They don't care about the intensions of the framers, they
would say "why should we be governed by people that are dead," constitution belongs to
the living. They would keep the constitution updated, current. They would do this by
amending, changing the constitution to keep it current.
Critics of Originalism
The judge own values may get in the way, epistemological, historical. We cannot know
today in 1999 what the framers intended in 1789. We don't have accurate historical
document (material) representing political problems. Can we accurate apply original
problems that the framers saw today, they couldn't for example imagine that we would have
something like Internet and how free speech would apply to that? We should Hamilton and
Jefferson rule us from the grave. How does we know that what the framers intended and
what the ratifiers understood the constitution to be, was the same.
Critics of Non- Originalism
What qualifies the judge to determine what is best for America? We should the courts
making the law, when it is the Congress job to do that. The job of the Supreme Court is
to promote justice.