Like it or not, much of the Constitution subject to interpretation| The Civics Project – Florida Today

Kevin Wagner, The Civics Project Published 12:26 p.m. ET May 22, 2020

Question: Why do courts need to interpret the U.S. Constitution? Why dont they just follow what it says?

Answer: Some provisions of the U.S. Constitution are very clear. For example, Section 1 of Article Two of the Constitution requires that the president must be at least 35 years old.

However, the Constitution has provisions that are much less clear. For example, the 8th Amendment prohibits cruel and unusual punishments. What is cruel, and how unusual does it need to be?

The Second Amendment provides that the right to keep and bear arms shall not be infringed. But, few would argue this means we cannot keep felons from owning assault-style rifles. Many of the most important provisions of the Bill of Rights use broad language like unreasonable search and seizure and due process of law. We rely on courts to give these phrases meaning.

Further, even in the case where the provision is relatively clear, the world around us is changing. The Constitution doesnt change much, but the society it governs changes a great deal. So how do you apply the Constitution when the language is expansive or to situations that were not even imagined when the document was written?

Judges use different methods to settle these conflicts. They look at the meaning of the words, the intentions of the framers, and precedent. You have probably heard buzzwords like Strict Construction, Original Meaning, Living Constitution, or Textualism. Those are just some of the strategies that judges use to discern the meaning of the Constitution.

Kevin Wagner(Photo: Palm Beach Post)

Some argue that the Constitution should only be interpreted based solely on the text. Others argue we should look to the original intent of the drafters. Yet, others contend that judges should be more pragmatic, and the Constitution must be interpreted in light of our current society and not just based on what was known years or even centuries ago.

The cynical would claim that these strategies are just defenses for judges to reach the conclusions that they would have reached anyway. Historically, the U.S. Supreme Court has been the most popular of our federal branches of government, largely because it has been seen as outside regular partisan battles. Its role is purportedly to neutrally interpret the law. Current Chief Justice John Roberts has tried to reinforce that view by asserting that judges are not defined by the president who appointed them. Yet, increasingly people see the court as partisan. And that is unfortunate.

As Congress and the president are unable to reach compromises and legislate, many issues are being decided in the courts. As a result, judges play a greater role in the U.S. than in other constitutional republics with more detailed constitutions that specify individual rights and government powers. Our political fights become legal fights. Issues such as abortion, immigration and health care are currently being litigated.

I suspect the deciding issue for many voters in this years election will be which candidate is more likely to appoint judges and justices who will issue decisions which will align with their values.

Kevin Wagner is a noted constitutional scholar, and political science professor at Florida Atlantic University. The answers provided do not represent the views of the university.

The professor wants to hear from you. Keep in mind that no question is too basic; but it can be too partisan. So if you have a question about how American government and politics works, send us an email at rchristie@pbpost.com.

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Like it or not, much of the Constitution subject to interpretation| The Civics Project - Florida Today