U.S. Constitution: An Overview.
The Constitution of the United States is the document that defines the legal, political, and, to a great extent, social basis of the lives of
American citizens. The freedoms enjoyed by US citizens, the government they are entitled to elect, and the process by which they may
participate in or protest against the government are outlined in this inclusive and all-important document.
The Constitution, though adopted in its original form on September 17, 1787, is still in use today. The Constitutioncontains a
preamble, followed by seven articles, which, collectively, form the foundation for the US system of government. The preamble sets forth
the purpose of the Constitution - "to form a more perfect Union . . . ." Article one establishes the legislative power; article two sets forth
the executive power; article three establishes the judicial branch; article four describes the relationship between the federal government
and the states; article five sets the procedure for amending the Constitution; article six establishes that the Constitution and the laws
of the United States are the supreme law of the country; and article seven describes the procedure for ratifying the Constitution.
The Constitution has been amended many times to accommodate changes in the social, political and cultural realities of the country
over the past two centuries. Through 2008, there are twenty-seven Constitutional amendments. Amending the Constitution is always a
controversial process, and not all amendments are clear. Consequently, the laws those amendments govern must be interpreted in the
federal court system.
The Supreme Court of the United States, head of the judicial branch of the federal government, is the sole body empowered to interpret
the Constitution at the federal level. The decisions of the Supreme Court permanently alter the nation's understanding of constitutional
law, and, thus, the methods Supreme Court justices use in interpreting theConstitution are heavily scrutinized and analyzed. Intense
debate has emerged concerning the methods justices employ in interpreting the Constitution. Some justices insist that
the Constitution is a living document that must be interpreted with modern circumstances in mind; as a result, some decisions may
seem to create new laws or fall outside of the Constitution's original language or the intent of the Constitution's framers. Other
justices contend that the Constitution is a timeless document that must be interpreted as strictly and as closely to the original language
as possible in order to avoid creating new meanings, and without going through the process of creating new laws - a power reserved
exclusively for the legislative branch of government.
Understanding the Discussion: Key Terms in Judicial Philosophy
Judicial Activism: A term that generally refers to judges who allow their personal and political views to affect their interpretation of the
law, and, consequently, their decisions in important cases. Judicial activists are often accused of ignoring stare decisis (defined below)
when making their decisions.
Living Constitution: An interpretation that assumes that the Constitution is a living document, and is thus flexible in its language and
intent.
Originalism: A method of interpreting the law, particularly constitutional law, that aims to stay as close as possible to the original intent
of the framers of the Constitution. Opponents of originalism contend that it is neither possible to discern the original intent of the
Founding Fathers, nor practical to simply follow its language, given how much American society has changed over two hundred years.
Pragmatism: A process of interpretation that takes into account the political, social and cultural climates in which a law is being
interpreted.
Stare Decisis: Also known as judicial precedent, this Latin phrase means "to stand by things decided," or to consider, and give weight
to, past decisions on issues, as a guide to interpreting the law.
Textualism: A process whereby a judge interprets the law based on the language contained in the text, and not on anecdotal evidence
of how the law has been created or interpreted in the past. A textualist judge would not, for example, look at the minutes of the
legislative session that wrote the law to determine what the legislators meant, and would not give weight to a statement made by the
President of the United States while signing a bill into law; he or she would simply read the law and decide the case.
History
The first United States Supreme Court session assembled on February 1, 1790, in the Merchants' Exchange Building in New York City.
For the first century of the Court's existence, the justices were required to assemble in each of thirteen judicial districts created by the
Senate's Judiciary Act of 1789. The judicial branch of government quickly proved itself to be the weakest of the three branches, as
the Constitution left its duties poorly defined, and the justices spent a good many years simply trying to define their role in government.
The justices were tentative in placing themselves into a more active role, until John Marshall was appointed Chief Justice by President
John Adams in 1801. Marshall sought to balance the power of the three branches, and used the Supreme Court's unique position as a
"law-breaker" to define the Court's role in government. In 1803, the Supreme Court for the first time declared a law unconstitutional.
In Marbury vs. Madison (1803), the Court struck down the Judiciary Act of 1789, thus establishing that it was the Supreme Court's duty
to examine the actions of the legislative and executive branches of government and its right to declare actions unconstitutional. In some
ways, Chief Justice Marshall's decision in Marbury vs. Madison can be considered the first act of judicial activism, as the Court had no
written law to follow, and thus the justices had to interpret the Court's powers based their personal opinions of the intent of
the Constitution, as well as the practical considerations of the case.
Over the next century, the Supreme Court became the final authority on the meaning of the Constitution, as well as the center of the
debate concerning personal freedoms as outlined by its amendments. Over time, Supreme Court justices began to follow one of two
courses of thought on how to interpret the Constitution: one group considered the Constitution as a flexible document, reflective of
the society in which it is interpreted; the other considered the Constitution to be textual, and believed that society should, for the most
part, conform to it. One side also favored stare decisis when interpreting theConstitution, and the other side favored judicial activism
and pragmatism.
The Fourteenth Amendment, ratified in 1868, sparked a sea change in the roles of both the Constitution and the Supreme Court in
American government. Prior to that time, states had nearly free reign to decide the fate of their non-citizens, particularly in the case of
slaves. When the amendment was passed, however, the federal government - in particular the Supreme Court - was given the right to
intervene in state laws and practices that violated the rights of any individual in the United States. The Fourteenth Amendment has
since served as the basis for most civil rights legislation, and the Supreme Court has on many occasions defended civil rights using this
amendment, whether the justices were classified as "activist" or "textualist." In 1927, Professor Howard McBain of Columbia Law
School coined the term "living Constitution" when he contended that the Constitution had to be viewed as a dynamic document that
could not be interpreted solely on stare decisis or textual interpretation. Some of his ideas are categorized as "pragmatist," a term that
most scholars prefer. Many judges were influenced by his work, and, as a result, the Constitution has been used as the basis for a
broad interpretation of civil liberties, particularly in cases concerning the Fifth Amendment (the right to due process) and the Fourteenth
Amendment (in particular the Equal Protection clause).
Without a "living Constitution" interpretation of the law, landmark cases such as Brown vs. Board of Education (1954), which
desegregated the public school system, and Roe vs. Wade (1970), which guaranteed a woman's right to an abortion, would likely have
been decided differently. In both decisions, justices interpreted the law based on what they felt society had become, and not necessarily
on what the founding fathers likely intended, as they may not have been able to anticipate how American society would develop.
It was exactly this kind of interpretation that was contested by originalists and textualists who felt that the Supreme Court interpreted
the Constitution too liberally. During the 1980s, a number of originalist and textualist justices were appointed to the Supreme Court
under republican administrations. These jurists made decisions that generally tended to favor states' rights.
US Constitution Today
The debate continues over how the Constitution should be interpreted, but the definitions of judicial activism and originalism have
recently come under intense scrutiny. Originally, judicial activism was associated with politically liberal judges who wanted to expand
the powers of the Constitution in order to expand civil liberties, sometimes, beyond the scope of what elected officials could
accomplish. Today, it has become clear that politically conservative justices also practice judicial activism as they try to limit the weight
given to prior decisions under stare decisis in order to interpret the Constitutionwithout regard for recent precedent. Conversely,
originalism, once entirely associated with conservative justices, has become a means for liberal judges to uphold prior decisions on civil
liberties.
Originalism has also been redefined by liberal justices somewhat, as they contend that the original intent of the Founding Fathers was
to create a flexible, dynamic Constitution. Liberal justices also have a body of cases that allow them to use stare decisis to determine
similar cases, so that they are less likely to practice judicial activism in its original sense.
While the words contained in the Constitution and its Amendments appear simple and clear at first, they have been the subject of
intense dialogue and debate for more than two centuries. Recent history has demonstrated that Presidential appointees to the Supreme
Court are intensely scrutinized regarding their judicial philosophies. As the political parties continue to closely examine potential
justices, these appointees, and their corresponding judicial philosophies, are certain to continue to raise important questions for the
President, Congress, and the American citizenry concerning the role of theConstitution in today's society.