Interpreting the Constitution Based on Current Understandings Instead of Original Meaning Is a Mistake

Alarmingly, more people today believe the Supreme Court should base its decisions on “current understandings” of the Constitution than on what the text of the Constitution meant when drafted, says a recent poll by the Pew Foundation. According to the poll, 55 percent of respondents believed judges should look to “current understandings” while only 41 percent believed they should interpret the Constitution based on the text as originally written.

These results should frighten everyone. Allowing judges to interpret the constitution based on contemporary fads will not only eviscerate our liberties, it will also empower justices to take constitutional joy rides wherever they choose. And that would take them—and us—to problematic destinations.

If judges base their decisions on “current understandings” of the Constitution, they could easily gut cherished liberties. The minute a constitutional right falls out of favor, judges could ignore it. Two examples make the point.

In Minnesota Voters Alliance v. Mansky, a case currently before the Supreme Court, the State of Minnesota argues that it can prevent a citizen from voting if he wears a T-Shirt to the polls that displays the text of the Second Amendment. You’re probably asking: on what grounds can the State prevent Mansky for exercising his rights as an American to vote? Because, the State says, the shirt “could be viewed as political” and might offend someone, potentially leading to a disturbance at the polls. Let that sentence sink in. Imagine that; a state preventing an American citizen from voting because another person might be offended by a shirt—a shirt that contains a portion of the Bill of Rights. And yet judges who apply “current understandings” of the First Amendment might very well nod with approval in the name of “safety” or some other trumped up claim.

A second example of willful judicial ignorance to constitutional meaning occurred in 1970 in Williams v. Florida. When the Framers crafted the Constitution, they included a provision in the Sixth Amendment that guaranteed criminal defendants the right to a trial by jury. At that time—and hundreds of years prior in common law—a “jury” meant a panel of 12 people. Yet, in Williams, the Court turned its back on legal history and allowed states to empanel juries of only six. In a sweeping comment that disrespected our constitutional forebears’ sacrifices, the Court declared that a jury of 12 was nothing other than “a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance except to mystics.” An interpretation based on what the text of the Constitution meant when drafted would not have produced this liberty-swallowing decision.

Put simply, the “current understanding” interpretive approach would allow our constitutional rights to be sacrificed to the gods of political correctness, political expediency, and political fear.

Moreover, an interpretive approach untethered to what the text of the Constitution meant when drafted would allow judges to exercise raw policymaking power far removed from the proper judicial role. Justices could re-interpret the Constitution however they saw fit. They could read words into the Constitution that do not exist, or read words out of the text as they see fit. The Constitution would go as far as the justices’ minds could take it. If you’re worried about courts becoming too political, just imagine what they would be like if given the option of ignoring the meaning of constitutional text.

Such an approach would also undermine the Supreme Court’s legitimacy. Because federal courts lack an electoral connection to voters, they are bereft of conventional arguments for legitimacy (such as popular sovereignty). Studies show that the public respects the Supreme Court because it sees justices as unlike other political actors and that support erodes when justices behave more politically. Justices engage in ideological decision-making, yes. But they engage in decision-making within a legal framework rooted in constitutional text. Remove that framework and you remove its basis for legitimacy and support.

No interpretive method is perfect. Perfection, after all, lies in the graveyard. But even with some of its limitations, the interpretive method that relies on what the text of the Constitution meant when drafted is best.

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