The Constitution of the United States is our civil covenant and it describes both the manner and extent of our federal government. Truly, the Constitution implies that the details of the Judiciary’s function were “to be worked out in practice” (O’Brien, 24), more than the other branches. The Branches of our government have certainly grown and morphed beyond their original outline because it has served the needs of the people to do so. But, the Constitution does not give the parameters for its own interpretation. The Constitution is not a document penned by a single person, but is a work of collective ingenuity. One person’s opinion of its intention in 1789 is no more binding than the notion that it is unbound from concrete principles. It means what it says. Though the Constitution is alterable and thus boundless in its limits, its words are not living organisms that morph with each new generation like subjective mutants. There are principles of governance that are stated clearly in it and are self evident when the words of the Constitution are taken at face value. The founders knew, however, that it could not serve all people in all times and built into the Constitution alterability by Amendment.
The Constitution is an outline of the federal government, its powers and principles. All modern readers pass their eyes over it with pre-conceived political sentiments and philosophical presuppositions; some with a reliance on the authority of history while others view it with a belief in deconstruction; forgetting all influences of tradition and history. Many believe that reason and the needs of modern man define the words of the Constitution and that it alters itself through the natural evolutionary process of our civics. What it evolves into is pre-supposed to be better than what it ceases being. Like Federalism and the party politics that grew out of the Constitution, there is no consensus as to how the fundamentals of our democracy work. Who has authority over the document that is our collective civic authority? How is that power institutionalized? Practiced? Altered? The discussion of Constitutional interpretation and judicial review are and will be focal points of disagreement and continue to be a hotbed of disunity for the citizens of the United States and their government.
Some form of judicial review is necessary to ensure that the federal government complies with its restrictions and mandates, however, that too often includes re-interpreting the Constitution’s meaning, which becomes an ad-hoc legislative act; creating new laws contrary to the process of law making outlined in the Constitution. Striking down unconstitutional laws and acts by the other branches of the government is important to our system of checks and balances but every member of our government who takes an oath to protect the Constitution is capable of interpreting and applying the Constitution, whether they reside in the Legislative, Judicial or Executive branches. Currently, the Legislative and Executive branches allow the Judiciary to have the final word on Constitutional questions, but this system is inadequate for a majoritarian government and the process needs to be reformed. Judicial review is synonymous with Constitutional interpretation and understanding the nature of interpretation teaches us about judicial review.
The plain text itself should be the foremost consideration in interpreting the Constitution, followed by the actions and statements of the bodies that created them. The interpretive process should not rely on “what do the words of the text mean in our time” (O’Brien, 78)? The words mean what they meant when they were written and if the needs of our civics have changed than those changes should be reflected via the Amendment process. But the Amendment process has always been too cumbersome and challenging for the revolutionaries in America.
Individual opinions can shed light on the Constitution’s meaning, but the nature of the Convention and Debates that formed and approved the Constitution were aimed at consolidating many opinions into one functional view. The language of the Constitution therefore satisfied several opinions and several opinions can still be satisfied by it. If an Anti-federalist and a federalist were satisfied with the same words, it should tell moderns something about the nature of its language. There is a great deal of variation within the orthodoxy of constitutional political theory. The language of the Constitution, once dealt with directly, could be clarified by reviewing the statements and acts of the state and national representative bodies that ratified and applied it. Those acts and laws that have been faithful to the original meaning of it should also be considered, but deciding on who was faithful is as challenging as agreeing on the original intent.
The clear meaning of the words should be the first and most important element of interpretation. This action is nearly impossible, given the modern tendency of stretching the vocabulary to include things that are not there. “Judicial review…is misleading, for today the term too often is synonymous with judicial activism and judicial revision…in its historic form, judicial review is protecting the Constitution through a judicial policing function whereby laws were judged against the clear meaning and original intentions of the Constitution” ( Barton, 263). Unfortunately, the Amendment Process is a difficult and strenuous task that has been subverted by easier means. Primarily by the process of altering the Constitution’s language to include modern issues, but also by discovering an obscure passage in the private letter of a founder that complies with a personal modern view and espousing it as political doctrine and sole Constitutional intention. A met-analysis of letters of the founders may yield more information but how Congress applied the Constitution in the years following its ratification is important to understanding it’s intent.
Each branch of the United States’ Government has sought to strengthen and defend its position and influence, including the Judiciary. “Consequently, if the Court ‘tested the waters’, advanced a new self-assigned power and failed to meet serious resistance, it simply consolidated its new gain. The result has been that, over a period of decades, the Court has succeeded in completely redefining its own constitutional role” (Barton, 267). This quote could describe the nature of each Branch of the U.S. Government, but the Judiciary does not answer to the ballot box. Leaving the only trumps of interpretation to the Judiciary is dangerous for Democracy in the United States. There must be new restrictions applied to its expanded powers because the current restrictions are not equitable to the task. It is necessary to have a watchman overseeing the actions of the Executive and Legislative branches, especially since the States have been rendered hopeless in doing so. But that process should not include overreach. Currently the Two parties use the Judiciary as a pawn in the power struggle of supremacy. The left should not check the right, but each Branch should stand up for what it views to be the proper application of the Constitution and a greater consensus must be reached in order to properly alter the Constitution to reflect modern political concerns. Most importantly, those changes must be made by the Amendment Process and not by judicial fiat.
Barton, David. Original Intent. Aledo: Wallbuilder, 2008.
O’Brien, David M. Constitutional Law and Politics. 7th ed. Vol. 2. New York: Norton, 2008.
Powell, Jefferson. “The Original Understanding of Original Intent.” Harvard Law Review 98.5 (1985): 885-948. JSTOR. Web. 17 Sept. 2009.