Interpreting the US Constitution

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One of the persistent themes in U.S. history is the question of how to interpret the Constitution. Does one take a textual view of the document, in which the meaning of the Constitution is limited to the exact wording of the document, or does one see the Constitution as being a living document, which has an underlying philosophy that points toward a general disposition favoring the maximum degree of civil liberties, self-government and access to participation in the democratic process as is feasible at a particular time.

Justice Antonin Scalia represents the former view today, while Justice Stephen Breyer represents the latter view. Scalia's argument can be found in his book, A Matter of Interpretation: Federal Courts and the Law (1998). Breyer's perspective can be found in his book, Active Liberty: Interpreting Our Democratic Constitution (2006).

Seventh Circuit U.S. Court of Appeals judge Richard Posner reviewed Scalia and Bryan A. Garner's new book, Reading Law: The Interpretation of Legal Texts, in the New Republic (September 13, 2012). In this piece, Posner gives a succinct summary of the problem with Scalia's "textual originalism": "A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute's aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible."

While this is a legal debate that leaps out of today's headlines, it was also an important point of controversy in the 19th century. If one takes Posner's phrase "the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers..." you have a fitting description of what the constitutional convention did when it compromised on the question of slavery.

Douglass argued that the Constitution was not a pro-Slavery document, in contrast to the position of Southern slaveholders and many Northern abolitionists, such as William Lloyd Garrison. Douglass based his interpretation of the Constitution on two things: (1) The Constitution never explicitly used the term "slavery," thereby withholding legitimacy form that institution and (2) the passages that refer to slavery, indirectly, in the original document, were the result of a compromise -- leaving the matter to be resolved by future generations. This was eventually done through the Civil War.

Douglass' argument, in the 19th century, which was not at all unlike that of Stephen Breyer today, and stands in contrast to that of Antonin Scalia, was that the philosophical thrust of the Constitution can be known, and should guide our interpretation of the long-term intent of the writers of that document. Although they compromised on the matter of slavery when the document was written, this did not mean that they intended for slavery to become institutionalized as a permanent fixture in the American republic. In a sense, they "punted" on that question.

The philosophical thrust of the Constitution, argued Douglass then, and Breyer today, is to give the benefit of the doubt to interpretations that favor expanding civil liberties and increasing access to participation in the democratic process.

While the specifics of the debate may change from one generation to the next, based on changes in culture, economics, technology, and historical circumstances, the underlying philosophical thrust of the document remains clear. It was because of that underlying philosophical tendency, which Douglass believed that he saw in the Constitution, which led him to disagree with Garrison and interpret the Constitution as being a document that tended toward liberty, but which had been hijacked by forces in favor of slavery who sought permanent legitimacy for practices that the delegates could not agree on at the time of the signing of that document.

Douglass believed that it was the duty of the 19th century abolitionists to reclaim the underlying principle of the Constitution, and not to allow the trees to obscure the forest.

How might Douglass' approach to interpreting the Constitution be applied to controversial constitutional questions today?

Reference: See Frederick Douglass, "A Change of Opinion," May, 23, 1851 in The North Star.

C. Matthew Hawkins