Constitutional Interpretation

The constitution as a written document is very simple and vague, making it fundamentally political and thus requiring those who interpret it to take into account the present state of the country and the effects that their decision will have on the current populous. The founding fathers, like our politicians today, had conflicting ideas on how the country should be run, hence the length and vagueness of the document. Among these debates was the issue of the judiciary branch. Many believed that a branch whose members were not publicly elected, and thus not representing the will of the people, garnered more authority and power than the others. In response to such criticism, Alexander Hamilton wrote the Federalist 78, in which he said the courts as outlined by the constitution are the weakest branch of government because, "It [Judiciary Branch] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."(1) Hamilton, along with many others, believes that the constitution implies that the courts have the power to judge issues brought to the Supreme Court. The courts ability to rule on the constitutionality of issues is not specifically mentioned the constitution but was reaffirmed in the landmark Supreme Court decision, Marbury vs. Madison in 1803. In declaring that the courts have the ability to determine a laws constitutionality, chief justice John Marshall established a policy of judicial review. Marshall's decision gave the courts inherent powers the constitution didn't specifically mention but also created a new dilemma for the courts: how to go about interpreting laws.

Modernism or loose construction are terms used to define an approach taken to interpreting the constitution that incorporates the present day implication of the constitution on

issues brought before the court. It is quite obvious that America has changed over the course of history and modernists believe that the constitution develops along with society. "To recall the fate of Socrates is to understand that the "liberty of the ancients" is not a sufficient condition for human liberty. Nor can (or should) we replicate today the ideal represented by the Athenian agora or the New England town meeting. Nonetheless, today's citizen does participate in democratic self-governing processes."(2) In referencing the philosopher Socrates, Justice Stephen Breyer reiterates the idea of a changing, living constitution and also makes an indirect reference to some of the fallacies that can be found by interpreting the words for their original meaning, as intended by the founding fathers. For example, free speech has been one of the most debated topics throughout history. The constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." Nowhere in that sentence does it mention flag burning, music, or the internet, but all of these topics have been influential in free speech cases throughout the history of the court, due to a growing and living constitution. Modernist courts tend to be more active and this can be beneficial to minority groups who look to gain more equality or judges who wish to avoid political turmoil through the misinterpretation of a provision that is no longer applicable. This is useful due to the fact that the amendment process is so long and difficult. The intentions of the framers of the constitution were conflicting and led to the creation of a document that was vague and filled with gaps. It is hard to believe that today's judges can read the minds of the founding fathers when debating issues before them. It makes more sense to rule in favor of the side that best promotes the public good.

Many in the field of history and politics argue that the United States has remained a dominant and growing society due to the its fundamental ties with the constitution. Originalists or strict constructionists believe in the process that holds judicial review to the exact interpretation of the constitutions words and meanings. This allows for a standard set of rules and guidelines to follow when making decisions. Originalists often argue that modernists rely too much

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