On Constitutional Construction

 

On Constitutional Construction

May 5, 2022

 

The legal system of the United States is quite complex. It includes many difference sources of law. These include statutes, published opinions of appellate courts, and many other sources. The foundational document of the whole system is the United States Constitution. It was born into a world very different from ours today. It has been amended many times since 1789 when it was first adopted. Both the original text of the Constitution (or at least most of it) and of the amendments to it (except for the two that negate each other) are part of the basic law of the land in our country. A common task of the our courts today, especially of the United States Supreme Court, is to determine how the various provisions of the Constitution, most of them over a century old, apply to cases that come before the court. That may seem an easy enough task. After all, the words of the Constitution in all of its provisions haven’t changed since they first came into effect. Isn’t all a court needs and is supposed to do is to read those words? If the court just reads the words of the Constitution won’t it know what the Constitution means? Surely that must be the case.

Well, no, that is not necessarily the case. The task of constitutional construction is, or at least can and I believe should be, far more complicated than that. One of the complications in interpreting the Constitution is that for some judges it is nearly as simple as that, and for other judges it isn’t. We must recognize that different judges see the task of constitutional construction differently. There are, you see, two very different approaches to the interpretation of any written document, including the US Constitution. I will attempt to explain those two approaches here.

You have probably heard the phrase “strict construction” or “strict constructionist” with regard to Supreme Court justices. Strict construction is how most conservative judges characterize their approach to determining the meaning of the Constitution and applying it to specific cases. The phrase strict construction, whether the people who use it know it or not, is shorthand for one of the two primary ways of understanding how we determine what a written text means. A written text is, after all, just a lot of ink on paper until someone reads the text and takes meaning from it.

Strict construction is a way of reading a text that is grounded in certain assumptions about the nature of meaning. It comes from a belief that meaning is a fixed, objective thing. It believes that:

 

1.      Any written text has only one correct meaning.

2.      You determine that meaning in most cases simply by reading the text.

3.      The sole meaning of the text is the meaning the text’s author intended it to have.

4.      It is illegitimate to find any other meaning in the text.

5.      The meaning of the text lies in the text itself and is not created by the reader of the text.

 

For the strict constructionist truth is factual. Like any correct fact about a physical object, it is what it is and cannot be anything else. The strict constructionist, therefore, understands the task of a reader of the text to be to discover what the words of the text are, to understand the meaning of the text to be what the words of the text say, and to insist that the text can have no other meaning. One consequence of the strict constructionist way of reading a text is that a text can mean only what it meant to the text’s author when the author first wrote it. The meaning of the text does not change over time. Its meaning does not depend in any way on the context in which a reader reads the text.

There are, however, often issues around the meaning of a text that require even the strict constructionist to look beyond the words of the text to determine what the text means. When the strict constructionist turns outside the text in an attempt to understand it, all he will likely do is to determine what the text meant in its original context by investigating the meanings that words and concepts in the text had when the text was written. Still, the strict constructionist usually assumes that the words of the text mean and originally meant what she understands them to mean in her context. The strict constructionist’s search for anything outside the text that might clarify the meaning of the text never goes very far from the text itself.

I’ll mention one more thing that contemporary construction understands far better than strict construction does. Strict constructionists often contend that they read a text, they don’t interpret a text. That contention of theirs is simply wrong. Reading is necessarily and unavoidable interpreting. Words don’t mean themselves. They just sit there doing nothing by themselves. Reading is the act of observing words, perceiving them, and applying one’s mind to them. When someone says they know the meaning of a word they’re actually saying that in their mind they have matched the word to some meaning for the word they already had in their mind or a meaning they looked up is the word is new to them. Even that basic act of matching a word and a meaning is an act of interpretation. One could in theory match any meaning with any word one sees on paper (or a computer screen or wherever). We’re rarely if ever aware that we’re doing it, but when we read we are constantly making decisions about the meaning of what we’re reading. At a very basic level those decisions are interpretation. The claim that one reads a text without interpretation is a claim that one does something that is existentially impossible. Strict constructionists may believe that they read without interpreting. They don’t. They can’t. Contemporary constructionists at least have the virtue of not denying that they interpret the texts they are reading.

The second way of understanding how one determines the meaning of a text doesn’t have a common, catchy shorthand like strict construction. I will call it here “contemporary construction.” Like strict construction, contemporary construction is grounded in certain basic principles, but those principles are quite different from those of strict construction. Strict construction sees meaning as objective, as a thing there not to be created but only discovered. Contemporary construction understands meaning differently. It understands that the meaning of anything is created only by the human mind. We humans are meaning making animals, and no meaning exists until we make it exist. A written text is at its most foundational level just ink on paper. It means nothing when no one is reading it. Meaning only comes out of it when a thinking mind reads and considers it. The mind of the reader brings the text alive and gives it its meaning.

Several important consequences flow from the understanding that only the human mind creates meaning. One of them is that any text can have more than one meaning. Meaning is a creation of the human mind, and no two human minds are perfectly identical. Each reader brings to a text his own being. He approaches a text from his particular context. The contexts within which all of us humans operate have a good deal in common. We are all human after all. Yet no person’s context is exactly the same as any other person’s context. Therefore a text, any text, will almost certainly be found to have more than one meaning.

Another consequence of the understanding that the mind creates meaning is that a text may legitimately mean something different to a reader than it meant to the author when the author wrote it. The author of any text of course brought her mind to the task of writing and wrote within her own particular context. The author’s mind and context will never be identical to the mind and context of any reader. The greater the difference between the contexts in which a text was written and the one in which it is read, the greater will be (or may be) the difference between author’s meaning for the text and the reader’s meaning for the text. It is also true that because meaning depends on mind and context, authors lose control of the meaning of their text as soon as someone else reads it.

Perhaps an example from the realm of literature will help here. The Irish playwright Samuel Beckett wrote a play titled Waiting for Godot. Though Beckett was Irish, he wrote the play in French, which means nothing other than Beckett was showing off. It premiered in 1953. In the play three characters are waiting for their friend Godot to join them. They wait and wait. They talk and talk. They keep expecting Godot to appear, and then have reason to believe that he will. He never does. Godot is in the play’s title. He is not a character who ever appears in the play. Many people who know this play understand it to be a metaphor for the human experience of the absence of God. The English word “God” is in the name of the title (non)character Godot. Characters in the play want him to appear, but he never does. It is easy, in fact it is nearly unavoidable, to draw the meaning out of the play that we humans want and may even expect God to appear to us, but God never does (not that that is a contention with which I personally agree).

Beckett, however, always insisted that his play was not about the absence of God. He said he never intended his play to have that meaning. So is it legitimate for others who read the play or see a performance of it (seeing it works the same way as reading it as far as meaning is concerned) to find the meaning in the play that it is about the absence of God? A pure strict constructionist would say no. That’s not what the author intended, so it’s not what the play means. A contemporary constructionist would say yes. It doesn’t matter that the author of the play never intended that meaning. The play has that meaning to me in my context, so for me the play really does have that meaning.

Now, one might be tempted to believe that for the contemporary constructionist anything goes with regard to a text’s meaning, but that simply is not the case. We are talking about finding meaning in texts. Strict constructionists are correct that a text says what it says, or at least on a superficial level they are. The words of a text don’t change, for if they did we would have a different text. When the contemporary constructionist reads a text she cannot legitimately find a meaning in it that is disconnected from or contradicts the words of the text. One cannot, for example, take Jesus’ line “Love your enemies” to mean that he gives permission or even a direction for us to hate our enemies. Likewise, one cannot take the Due Process Clause of the Fourteenth Amendment to mean that the state can do whatever it wants to whoever it wants however it wants. The text of the clause simply does not support that meaning and cannot legitimately be made to do so. Questions of whether or not an interpretation of a text are usually more subtle than that, but I trust the point is made.

So it should come as no surprise that strict constructionists and contemporary constructionists approach the task of constitutional construction in very different ways. They ask a constitutional text different questions. I will use the present storm around the Supreme Court’s apparent intent to overrule Roe v. Wade as an example. The strict constructionist looks at the words of the Constitution. He may well think the meaning of the document’s words is obvious and needs no interpretation (though as I said above, he’s wrong about that). So he proceeds to apply what he takes the words to mean to the case before him and thus reaches a resolution of the case. In the draft opinion in the current abortion case before the Supreme Court that was leaked to the press, Justice Samuel Alito says, “The Constitution makes no reference to abortion.” That obvious fact essentially determines the result of the case for him and requires the court to overrule Roe v. Wade. In his opinion Justice Alito does also address the question of whether the Constitution implies a right to abortion, but he seems to do so only because those who support Roe v. Wade and the Roe decision itself say that it does. Justice Alito is about as close to being a pure strict constructionist as a judge can be.

A contemporary constructionist on the other hand approaches the task of constitutional interpretation differently. In the case we are considering she must of course concede that the Constitution does not contain the word abortion. It simply does not expressly create a right to abortion. Yet the contemporary constructionist is concerned about the impact on real people from overruling Roe in a way the strict constructionist either truly is not or does not allow himself to be. For the strict constructionist the Constitution’s silence on abortion is decisive. It is not necessarily decisive for the contemporary constructionist.

It certainly appears, and the contemporary constructionist must concede, that the framers of the Constitution and its various amendments never meant to create a right to abortion. They did however include provisions that relate to the issue of other constitutional rights. The Fourteenth Amendment, for example, creates a right to due process of law. The Ninth Amendment acknowledges that the people have rights not specified in the Constitution. The Fourth Amendment can be seen to create a kind of right of privacy when it creates a right to be free from unreasonable searches and seizures.

The people who wrote those constitutional provisions did not intend for them to create a constitutional right to abortion. However, the contemporary constructionist asks whether societal and cultural changes in the country since the times in which those provisions originated make finding a right to abortion in the Constitution possible and legitimate. In answering that question she would find, among other things, that the status of women in society has changed dramatically since 1789 when the Constitution was first adopted and since 1868 when the Fourteenth Amendment was added to it. Though we still have some significant distance to go before our country sees the true equality of women with men, America today understands women to be far more autonomous, far more entitled and able to make their own decisions about their lives, than America did in those days so long ago. She might therefore conclude that today these and perhaps other constitutional provisions do in fact create a right to privacy and that the right includes the right to abortion.

Both of these types of constitutional construction have representatives on today’s Supreme Court. The majority of the justices consider themselves to be strict constructionists. They believe that the one and only meaning of every constitutional provision was set when the provision was adopted. They quite correctly contend that the drafters of no constitutional provision intended to create a constitutional right to abortion. Their inquiry into the meaning of the Constitution ends there.

The contemporary constructionists’ inquiry does not. The contemporary constructionist believes in a way the strict constructionist does not that the Constitution is a living document. Most of it is old (by American standards at least). It has retained its authority in American law and its ability adequately to regulate important aspects of the country’s life because people of different times and different societal and cultural contexts have found meaning in it for the context of their time and place. No, when drafted, the US Constitution did not create a constitutional right to abortion. For the contemporary constructionist, however, that doesn’t mean that it can’t create one today.

Strict construction reigns in today’s Supreme Court. A majority of the court’s justices were nominated by conservative presidents, three of them by Donald Trump. Conservative jurists and politicians strongly prefer strict constructionist judges to contemporary constructionist ones. Strict construction stops the court from interpreting the Constitution as functioning differently today than it did much earlier in our country’s history. Though American society and culture today recognize far more individual rights than they did in 1789 or 1868, strict construction stops the court from securing those rights with a constitutional guarantee. Which type of constitutional construction is correct? That, I suppose, is up to each judge, indeed each person, to decide for themselves. Your humble author prefers contemporary construction to strict construction. The majority of today’s Supreme Court justices prefers strict construction. The conflict between these two types of constitutional construction is not likely to disappear any time soon.