How do Judges Interpret the Constitution?
Handout 1: The Minnefornia Elections
The State of Minnefornia has rules that govern its elections. The general election in 2012 will be on
Tuesday, November 6. In order to run for Congress, a candidate must file a petition with Minnefornia’s
Secretary of State 60 days before the election. If the candidate files the petition and meets the
Constitutional requirements for office, the Secretary of State will put his or her name on the election
ballot. You will act as the Secretary of State, and must decide whether each candidate’s name will appear
on the ballot.
The Constitution says that people who want to serve in the U.S. House of Representatives must be 25
years old, have been a U.S. citizen for 7 years, and live in the state where they are elected. Specifically,
it says:
The U.S, Constitution: Article 1, Section 2, Clause 2
No person shall be a Representative who shall not have attained to the Age of twenty five years, and
been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of
that State in which he shall be chosen.
1. Chad lives across the river from Minnefornia in the state of Georgiassippi. He works in Minnefornia
and plans to move there before Election Day. He submits the required petition to be a candidate for
the U.S. House of Representatives. Will his name be on the ballot?
2. Shannon is a recent graduate of the University of Minnefornia. She turns 25 on November 5, 2012.
She turns in the petition to be a candidate for the U.S. House of Representatives. Will her name be on
the ballot?
3. Desiree is a college student in Minnefornia. She is 22, and wants to run for the U.S. House of
Representatives. She believes that the rule that you must be 25 is unfair, and that the world has
changed a lot since the Constitution was written. She thinks that there should not be an age limit for
public office. She turns in the petition to be a candidate. Will her name be on the ballot?
© 2012 Street Law, Inc.
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Handout 2: Background & Video Viewing Guide
Background
Many people—judges, legal scholars, political leaders, and citizens—disagree about the best way to
interpret the different provisions in the Constitution. Two major competing approaches exist:

Some “Originalists” argue that the document should be interpreted according to the original intent
of the people who wrote it in 1787 (often called “the Framers”), while others—including Justice
Scalia—argue that it should be interpreted according to the original understanding of Americans
when it went into effect in 1789.

Proponents of a “Living Constitution” argue that historical analyses can’t provide all the answers
for modern situations and that where they don’t, judges must apply the values of the Constitution
in light of modern circumstances.
Originalists criticize the Living Constitution approach because they believe it allows judges to substitute
their own, personal values and desired outcomes for the will of the people. Living Constitutionalists
criticize the Originalist approach because they believe we can’t tell what the Framers intended it to mean,
or what the people of the time understood it to mean. They also believe that for the Constitution to
endure, it must be adaptable to circumstances that the Framers could not imagine.
It is worth noting that the Constitution itself says nothing about how it should be interpreted.
As you watch the video, answer the questions below.
1. Justice Scalia says that when deciding cases, he cares for the people who ratified the Constitution.
What does he say those people thought of the death penalty?
2. Justice Breyer says the Constitution created a workable democracy that is supposed to last for a long
time. What is a judge’s job?
© 2012 Street Law, Inc.
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3. List the things that Justice Breyer considers when interpreting the Constitution “in difficult cases” in
the left column. List the things he says Justice Scalia is “happier” considering in the right column:
Justice Breyer considers:
Justice Scalia considers:
1.
1.
2.
2.
3.
3.
4.
4.
5.
6.
4. Why does Justice Breyer think his approach makes Justice Scalia nervous?
5. Justice Scalia says that the Constitution is not an ______________________________ of change, but
rather that it’s purpose is to ______________________________ change. How does the
Constitution provide a flexible system?
© 2012 Street Law, Inc.
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Handout 3: DBQ – Originalism & a Living Constitution
Question: Which approach is better – Originalism or a Living Constitution?
Examine the following documents and consider the questions about each one. The documents will
all discuss the author’s ideas about the best way to interpret the Constitution.
After examining each document, use the chart on page 5 to organize the arguments to support two
different positions: that judges should take an Originalist approach to interpreting the Constitution,
or that judges should take a Living Constitutionalist approach to interpreting the Constitution.
Document A
Chief Justice John Marshall, in the Supreme Court’s opinion from McCulloch v. Maryland (1819),
in which the Court had to decide whether the Constitution gave Congress the power to create a
national bank:
“[The] Constitution [is] intended to endure for ages to come, and consequently to be adapted
to the various crises of human affairs. To have prescribed the means by which Government
should, in all future time, execute its powers would have been to change entirely the character
of the instrument and give it the properties of a legal code. It would have been an unwise
attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been
seen dimly, and which can be best provided for as they occur.”
What does Chief Justice Marshall say about the Constitution’s adaptability?
© Street Law, Inc. 2012
DBQ: page 1 of 5
Document B
Edwin Meese, Attorney General, from a speech delivered in 1985 (excerpted):
“What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence
of Original Intention…
“This belief in a Jurisprudence of Original Intention also reflects a deeply rooted commitment
to the idea of democracy. The Constitution represents the consent of the governed to the
structures and powers of the government. The Constitution is the fundamental will of the
people; that is why it is the fundamental law. To allow the courts to govern simply by what it
views at the time as fair and decent, is a scheme of government no longer popular; the idea of
democracy has suffered. The permanence of the Constitution has been weakened. A
Constitution that is viewed as only what the judges say it is, is no longer a constitution in the
true sense.
“Those who framed the Constitution chose their words carefully; they debated at great length
the most minute points. The language they chose meant something. It is incumbent upon the
Court to determine what that meaning was…
“It is our belief that only ‘the sense in which the Constitution was accepted and ratified by the
nation,’ and only the sense in which laws were drafted and passed provide a solid foundation
for adjudication. Any other standard suffers the defect of pouring new meaning into old words,
thus creating new powers and new rights totally at odds with the logic of our Constitution and
its commitment to the rule of law.”
What does Attorney General Meese say about the words used by the people who framed the
Constitution?
What does Meese say will happen if judges ‘pour new meaning into old words’?
© 2012 Street Law, Inc.
DBQ: page 2 of 5
Document C
Chief Justice William Rehnquist, from an article in the Texas Law Review (1976):
“…Serious difficulties flaw the [approach] of the living Constitution. …It misconceives the
nature of the Constitution, which was designed not to enable the popularly elected branches of
government, not the judicial branch, to keep the country abreast of the times…
However socially desirable the goals sought to be advanced… advancing them through a freewheeling, nonelected judiciary is quite unacceptable in a democratic society.
Under [some versions of] the living Constitution, nonelected members of the federal judiciary
may address themselves to a social problem simply because other branches of government
have failed or refused to do so.”
Who does Chief Justice Rehnquist say should be responsible for addressing the social problems of our
country?
Document D
Justice Stephen Breyer, from Making Our Democracy Work (2010):
“[We] require a constitution that works well for the people today… The Court should reject
approaches to interpreting the Constitution that consider the document’s scope and
application as fixed at the moment of framing. Rather, the Court should regard the
Constitution as containing unwavering values that must be applied flexibly to ever-changing
circumstances. The Court must consider not just how 18th century Americans used a particular
phrase, but also how the values underlying that phrase apply today to circumstances perhaps
then inconceivable.
“Originalists hope that judges will find answers to difficult constitutional questions by
proceeding objectively, almost mechanically, to examine past historical fact. An objective
approach will reassure the public that the Court’s interpretation reflects what history shows to
have been the framers’ detailed intentions, not the judge’s own. … This historical approach,
however, suffers serious problems. For one thing, it is less ‘objective’ than one might think. …
history often fails to provide specific objective directions.”
How does Justice Breyer describe his view of the problem with Originalism?
© 2012 Street Law, Inc.
DBQ: page 3 of 5
Document E
Justice William Brennan, from a speech at Georgetown University (1985):
“There are those who find legitimacy in fidelity to what they call ‘the intentions of the
Framers.’ In its most doctrinaire incarnation, this view demands that Justices discern exactly
what the Framers thought about the question under consideration and simply follow that
intention in resolving the case before them. …
It is arrogant to pretend that from our vantage we can gauge accurately the intent of the
framers on the application of principle to specific, contemporary questions. Typically, all that
can be gleaned is what the framers themselves did not agree about the application or meaning
of particular constitutional provisions...
Those who would restrict claims of right to the values of 1789 specifically articulated in the
Constitution turn a blind eye to social progress and eschew adaptation of overarching
principles of changes to social circumstances.
The ultimate question must be, ‘What do the words of the text mean in our time?’ For the
genius of the Constitution rests not on any static meaning it might have had in a world that is
dead and gone, but in the adaptability of its great principles to cope with current problems
and current needs.”
Does Justice Brennan think that we can accurately figure out what the Framers meant when they wrote
specific parts of the Constitution? Why or why not?
What does Justice Brennan think is the ‘genius of the Constitution’?
© 2012 Street Law, Inc.
DBQ: page 4 of 5
Arguments for Originalism & a Living Constitution
Use the chart below to organize the arguments presented in the documents. List reasons in favor of
the Originalist approach in the left column, and reasons in favor of the Living Constitutionalist
approach in the right column.
The Constitution should be interpreted using
the Originalist approach:
The Constitution should be interpreted using
the Living Constitutionalist approach:
Argument from:
Argument from:
Document _______
Document _______
Document _______
Document _______
Document _______
Document _______
© 2012 Street Law, Inc.
DBQ: page 5 of 5
Handout 4: Evaluating Opinions – Roper v. Simmons
In 2005, the Supreme Court decided a case about the Eighth Amendment. The Eighth Amendment
prohibits “cruel and unusual punishments.” Christopher Simmons, a 17-year-old, was convicted of
murdering a woman and was given the death penalty. Simmons appealed his death sentence, arguing to
the Court that it was “cruel and unusual punishment” to execute a person who was under the age of 18
at the time the crime was committed. The Supreme Court had to decide whether to ban the death
penalty for juveniles.
The excerpts below come from the Supreme Court justices’ opinions in this case. Read each excerpt and
decide whether it represents an Originalist (O) approach or a Living Constitutionalist (LC) approach to
interpreting the Eighth Amendment’s ban on “cruel and unusual punishments.”
____“We share a common history with the United Kingdom, and … often consult English sources
when asked to discern the meaning of a constitutional text written against the backdrop of
18th-century English law and legal thought.”
____ “If the meaning of [the Eighth] Amendment had been frozen when it was originally drafted, it
would impose no impediment to the execution of 7–year–old children today. … The evolving
standards of decency that have driven our construction of this critically important part of the
Bill of Rights foreclose any such reading of the Amendment.”
____ “[In a previous case, the] Court determined that executing mentally retarded offenders ‘has
become truly unusual, and it is fair to say that a national consensus has developed against it.’
… [There is] evidence of national consensus against the death penalty for juveniles … 30
States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty
altogether and 18 that maintain it but … exclude juveniles from its reach.”
____ “[The majority’s conclusion is that] the meaning of our Constitution has changed over the past
15 years—not, mind you, that this Court's decision 15 years ago was wrong, but that the
Constitution has changed….[It finds], on the flimsiest of grounds, that a national consensus
which could not be perceived in our people's laws barely 15 years ago now solidly exists.”
____ “… the Court says in so many words that what our people’s laws say about the issue does not,
in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the
question of the acceptability of the death penalty under the Eighth Amendment…The Court
thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of
discharging that awesome responsibility purports to take guidance from the views of foreign
courts and legislatures.”
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Handout 5: Interpreting the Recess Appointment Clause
US Constitution, Article II, Section II
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire at the End of their next Session.”
Restate this in your own words:
What does it mean? Can the President…
-
Appoint someone (during a recess) to fill a vacancy that existed before a recess?
Make appointments during a recess that occurs in the middle of a session, rather than a recess
between sessions?
Make appointments when the Senate is out of town, but not officially on recess, holding “pro forma”
sessions every three days to avoid taking an official recess?
What else would you want to know about this clause in order to interpret it?
© 2012 Street Law, Inc.
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The following arguments have been made for and against the president’s power to make recess appointments
in the manner described above.
Assign each row to one of the following categories as described by Justice Breyer: Text, History, Traditions,
Precedent, Purpose or Values, and Consequences.
Argument
Category
The clause says “the” recess, not “recesses.” The use of the article “the,” and later “the next
session” indicate that it means sessions between recesses only.
In 1787 “the recess” was regularly used to describe the equivalent of intrasession breaks of
the British Parliament, state legislatures, and the Continental Congress.
In the 18th century senators were scattered all over the United States for long periods of
time, without the benefit of modern communications or the ability to return to Washington
quickly, even in an emergency. The president needed the power to act in their absence.
The Clause is designed to allow the president to fill vacancies when the Senate is not
available to provide advice and consent.
The Senate’s use of pro forma sessions to frustrate the president’s exercise of his recess
appointment power disrupts the balance of powers in Article II. The President has a
constitutional duty to “take Care that the Laws be faithfully executed,” and the Senate is
getting in the way of that duty.
Since the 1820s, the vast majority of presidents have made recess appointments to fill
vacancies that arose before a recess and existed during the recess.
For the past 80 years, both the Senate and the president have formally recognized that the
Senate is in “recess” when the Senate’s members do not have to attend sessions and when
the Senate cannot participate in making appointments.
Saying that the president cannot these kind of recess appointments could call into question
thousands of appointments going back to George Washington.
Allowing the Senate’s to use pro forma sessions to frustrate the president’s use of the recess
appointment power could be a very effective way for some in the Senate to check the
President’s power.
© 2012 Street Law, Inc.
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