Defining document

September 08, 2006|By Richard Labunski

Almost every school and university will celebrate "Constitution Day" on Sept. 18. Sen. Robert C. Byrd added an amendment to a spending bill in 2004 requiring educational institutions getting federal funding to provide programs on the document's history on the anniversary of its signing.

Students will likely learn how the Constitution was written and ratified, but that is not enough. They must think about what those words mean today. Their teachers and parents should discuss with them these major approaches to constitutional interpretation:

Original Intent. This confusing term arises whenever a Supreme Court nominee goes before the Senate Judiciary Committee. It is hard to imagine a less useful way of interpreting the Constitution than by trying to determine what the founders were thinking when they wrote that document, with its many general phrases. Fifty-five delegates, coming and going during the summer of 1787, certainly did not all agree, for example, on what it meant to give Congress the power to "make all laws which shall be necessary and proper" to carry out its functions.

Even if there were a general understanding among the delegates, the search for "intent" cannot be limited to those men. After the Constitution was signed, it had to be ratified by nine states in conventions whose delegates were chosen by the people. What was the intent of the voters who elected delegates to the ratifying conventions? What about the delegates themselves? James Madison believed the ratifying debates were as authoritative an interpretation of the Constitution as the discussion at the Philadelphia convention.

Then the Bill of Rights was proposed by the First Congress. What did the members of the House and Senate mean by "freedom of speech" or "due process of law"? The voters who elected them? The state legislatures that ratified the Bill of Rights?

The "Textualist" Approach. The best-known proponent of this is Supreme Court Justice Antonin Scalia, a conservative voice on the court for 20 years. Justice Scalia does not care about the "intent" of the framers, even if it could be discovered. Referring to himself as a "textualist," he wants to know what the words of the Constitution meant when they were written.

That may sound appealing, but it is devastating to civil liberties. Justice Scalia essentially argues that the Constitution is fixed in time - at the end of the 18th century - and that any changes in constitutional interpretation must be made through amendments, not by judges applying it to new conditions.

Look at what Justice Scalia's approach does to the First Amendment: In 1964, the Supreme Court in New York Times v. Sullivan unanimously overturned a $500,000 judgment awarded to an elected Alabama official because of minor errors in a political ad that did not even name him. The outcome was crucial because it allows the press and public to criticize public officials without the threat of punishing libel suits. Justice Scalia suggested in a 1996 PBS documentary that the case was wrongly decided, arguing that when the Bill of Rights was ratified in 1791, no protection from such lawsuits was generally recognized.

The "Living" Constitution. Proponents believe the Constitution evolves over time, and it is what the words mean today that matters. The "equal protection" clause of the 14th Amendment reflects this. It protects the rights of women because of how judges have applied it in recent years, not because it granted such rights when ratified in 1868.

Many people reject this approach because, they argue, it has no defined limits, and judges are free to interpret the Constitution based on personal views. It thus becomes a political document instead of a declaration of enduring values.

There is no single theory of constitutional interpretation to which everyone agrees, yet it is vital for citizens to consider how this country's national charter should be applied to today's challenges. Constitution Day provides an ideal time to focus on these issues, but the discussion should extend well beyond a one-day celebration.

Richard Labunski is a journalism professor at the University of Kentucky and the author of "James Madison and the Struggle for the Bill of Rights." His e-mail is

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