Mountain Law: Interpreting the Constitution |

Mountain Law: Interpreting the Constitution


As Congress holds hearings this week to decide whether or not to confirm Elena Kagan as the next Supreme Court Justice, there will surely be a newly heated debate about “judicial philosophy” when it comes to interpreting the Constitution, whether Kagan is an “originalist” or “non-originalist,” and whether she will be an “activist judge.” What do these terms really mean, and why does it matter?

To begin with, let’s discuss why the Constitution is so problematic. By its nature as a guiding document, the Constitution contains open-textured language such as “commerce among the states,” “necessary and proper,” “cruel and unusual,” “freedom of speech,” “well regulated Militia,” “liberty,” “taking,” and “equal protection.” Because the Constitution does not define this language, judges must decide what it means. For example, “freedom of speech” has never been interpreted to include the right to yell “fire!” in a crowded theater. But if the freedom of speech clause is not absolute, what are its boundaries and how should we decide? Ultimately, judges must make controversial policy decisions that balance societal needs against individual rights.

As controversial as interpreting the actual language of the Constitution can be, there is often even more heated debate about whether it is appropriate for judges to protect individual rights not expressly stated in the text of the Constitution. For example, should the Court have recognized a constitutional right of women to terminate their pregnancies? Was the Court wrong in failing to find a right to engage in private, consensual homosexual activity?

Ultimately, policy decisions about constitutional issues are intertwined with a judge’s philosophy about how the Constitution should be interpreted. Ine one camp are originalists who believe that the Constitution has one unchanging meaning, and that it is a judge’s role to interpret what the Constitution originally meant when it was drafted by the framers. There are strict originalists who believe we should not look beyond the language of the Constitution itself to determine its meaning. There are also moderate originalists who would permit judges to determine the framers’ intent by reference to historical documents other than the Constitution. Originalists believe matters not specifically addressed in the Constitution (such as abortion) should be decided by the legislative branch or changed by Constitutional amendment. Originalists seek to constrain so-called “activist judges” who they believe substitute their own policy choices for those of the people’s elected representatives.

In another camp are non-originalists who believe the Constitution does not have a fixed meaning, but rather changes its meaning over time to respond to the changing needs of society. Non-originalists do not believe it is realistic for all Constitutional changes to be made by the cumbersome process to amend the Constitution, which requires approval by two-thirds of both houses of Congress and three-fourths of the states. Non-originalists often point out that racial segregation and gender discrimination were approved by the framers … and would be permitted by an originalist interpretation of the Constitution. Progress on civil rights issues, such as the landmark case of Brown v. Board of Education that struck down racial segregation, has been possible only by following a non-originalist philosophy. Non-originalists criticize moderate originalists on the basis that there is no unambiguous and knowable framers’ intent that can be found to resolve Constitutional issues. They assert that deciding how to interpret framers’ intent requires the same hand of the judge in the process that is criticized as “activist” by originalists.

If Kagan is confirmed by Congress, she, like all government officials, will take an oath of office to support and defend the Constitution. Only as her judicial philosophy becomes clearer over time will we know what the oath truly means to her … and the country.

Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate, business law and litigation. He may be reached at (970)468-4953 or

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