Divining the Meaning of the Constitution [John Roberts]

What philosophy will guide John Roberts in interpreting the Constitution if he is seated on the Supreme Court? Roberts (r) meets with Senate Majority Leader Bill Frist, R-Tenn., on July 18, the day after his nomination. (Photo by David Brody)

Divining the Meaning of the Constitution

WASHINGTON -- When it comes to the Constitution, John Roberts declared in 2003, "I would not hew to a particular `school' of interpretation."

Roberts was then a nominee to the federal appeals court in the District of Columbia. He is now a nominee to the nation's highest court. And what he meant by those words will be at the heart of the Senate confirmation hearings that begin Sept. 6.

The Constitution is the supreme law of the land -- the very document that presidents swear to "preserve, protect and defend." We might assume its text is self-evident, that it says what it means. But there is a longstanding argument over just this point.

How do we best determine what is required of Americans by this document, created "to form a more perfect Union"? What kind of a people are we?

Legal tools have evolved to help us find answers, says Robert W. Gordon, a Yale law professor and constitutional scholar. But their application is more philosophy than science -- "It's been true since the beginning of the Republic," Gordon says.

Even James Madison -- a principal author of the Constitution -- was at pains following its 1789 adoption to explain what he and the other framers intended. He compiled notes, posthumously published, to detail the process. Gordon sums up the presumed aim: "I was there and this is what we meant."

The debate, now and historically, is all the more contentious because it is never far removed from politics. Merely getting the Constitution ratified was a harrowing political experience. Today the debate is most pitched when the stakes are a seat on the U.S. Supreme Court.

President Bush, in lauding Roberts, made this confident prediction: "He will strictly apply the Constitution and laws, not legislate from the bench."

But that raises another question: How do you define what some, usually detractors, call judicial activism? Narrowly, as policy-setting that critics think should be left to legislators? Or more broadly, as an effort to reverse those policies from the bench?

"If the courts are making the decisions, it matters who the judge is and, of course, people are concerned with what is the bottom line," says John Harrison, a University of Virginia law professor who studies constitutional structure and history.

The first step in considering any legal document -- whether a will, a contract or the Constitution -- is to figure out what the person or persons writing it had in mind, says Robert Post, a Yale colleague of Gordon's and a professor of constitutional law.

"If you understand what the text means, of course you're going to be bound by it," Post says. If it's written in the Constitution that every state should be represented by two senators, no one is going to argue for three.

Debate arises, he says, "because nobody knows ... what is equal protection of the law? The establishment clause of religion? If you're uncertain, the text can't bind you or help you."

Enter Gordon's "interpretive tools." They can be broken down into text, history and structure.

We can approach the Constitution in light of its expressed words -- that is, the text and only the text. We can make a historical inquiry, searching for what the Constitution was understood to mean at the time it was adopted. We can gauge what its words mean in the context of its overall structure. We can take that a step further, as Harrison says, and try to determine what a reasonable, hypothetical person might be trying to achieve. We can depend on precedent -- how has the document been understood over time? Or we can rely on combinations of the above.

"They are all implied from the founding, and are all quite venerable ways of going about the interpretive process," says Harrison, who worked in the Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Still, two schools of thought often square off in these matters. The adherents of one are called "originalists," while the proponents of the other see the Constitution as "a living document."

Originalists place their faith in a literal reading of the framers' words. On the current Supreme Court, Justice Antonin Scalia has been their most ardent supporter. In a speech he made on the subject in May Scalia said, "Rights do not grow smaller or larger."

This view is not limited to conservatives like Scalia. Liberals employ it when it suits their purposes. In fact, the philosophy seems most useful to political factions out of power because it offers a way to restrain judicial influence.

A case in point: In the 1920s and 1930s, liberals accused judicial conservatives of creating rights not in the Constitution. They pressed for judicial restraint. But when liberals wrested power away, in Gordon's words, "they started changing their tune."

Justice Benjamin N. Cardozo, a Herbert Hoover appointee who served on the Supreme Court from 1932 to 1938, captured the essence of the living document theory: "A constitution states or ought to state not rules for the passing hour, but principles for an expanding future." Justice Ruth Bader Ginsburg aligned herself with this philosophy by quoting Cardozo in her own confirmation hearings.

The competing points of view are clear in debate over the Supreme Court's Roe v. Wade decision, which guarantees a right to abortion. Opponents believe Roe was based on a faulty "right to privacy" -- a right, they argue, not explicitly stated in the Constitution. But if the Roe decision doesn't satisfy some originalists, its reasoning does summon the idea of the Constitution changing and adapting with the times.

Nominees, without fail, promise to faithfully follow the text of the Constitution, effectively dismissing any idea that they would legislate from the bench. Then, as Gordon says, disagreements about what it means to legislate percolate to the surface.

"We're really not talking about bad faith here," says Gordon, who by his own description emerged from law school in the early 1970s as an activist liberal lawyer. "Both liberals and conservatives sincerely believe that the best interpretation of the Constitution calls for results they prefer."

"I would not hew to a particular `school' of interpretation, but would follow the approach or approaches that seemed most suited in the particular case to correctly discerning the meaning of the provision at issue."

"A constitution states or ought to state not rules for the passing hour...

John Roberts has to much reverence and respect for the Document to ever say what it "OUGHT TO TO STATE."

""A constitution states or ought to state not rules for the passing hour, but principles for an expanding future."

But, Judge. OUR Constitution states what it does BECAUSE of people like you who would rather push their own ideas on the American people of what 'A Constitution should say'.

That is exactly what the Founders were guarding against when they wrote it!

"The first step in considering any legal document -- whether a will, a contract or the Constitution -- is to figure out what the person or persons writing it had in mind, says Robert Post, a Yale colleague of Gordon's and a professor of constitutional law."

I would say the first step is abiding by the legal definitions of words used in a contract, will, or in this case, the Constitution.

It is not up to the courts to re-define words. Once we allow that, as in the case of the Mass. Supreme Court, (abusing and changing the legal definition of marriage) you have made a mockery of the rule of law, for without the consistency of definitions from generation to generation, the law will always be up for grabs.

Thank you, Mass. Supremos, you bunch of whackos.

I just think Roberts will make a great Supreme Court Justice. Too bad you didn't have a picture with either Roberts himself or with someone else besides Dr. Evil...

I agree 100% with what you say.......the biggest problem this country has is that our political leaders seem to spend most of their time implementing the tenets of the Communist Manifesto vs. the Constitution, most of the time without even realizing it.

Look at how we've evolved with the fed'l control of education, progressive income taxes, a strong central bank (Fed'l Reserve), regional planning, fedgov contol of communications & transportation, etc.!........NONE OF WHICH ARE PROVIDED FOR IN THE CONSTITUTION.....rather it's a Marxist blueprint to destroy this country that has him smiling in his grave.

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