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

The Four Arrows of Project-Based Learning

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Project-based education is focused on four primary areas of learning: It helps students take ownership over their process of learning; it helps students to become self-aware as learners; it provides students with ongoing opportunities for interaction, collaboration and engagement; and it provides students with opportunities to generate new knowledge.

Find out more about project-based education.

There are at least four arrows in the quiver of project-based learning: participating in Wikis; keeping a journal; participating in discussion boards; and developing a blog.

The Wiki is an effective tool for both collaboration and generation of new knowledge. It requires students to summarize their understanding of the course and to respond to what others are taking away from texts, class sessions and their own projects. Wikis provide a hands-on process that turns students into teachers, which is one of the most effective methods of learning. It is also a good arena for brainstorming. The keys to participating effectively in wikis are to build on what others have said, and to correct their errors.

Keeping a Journal strengthens students' skills in being self-reflective learners. Students use journals to note their process of learning, the problems and questions they encountered, and how they overcame those problems or answered those questions. The journal is used to plan and track one's progress in learning. Self-reflection as a learner is the key to writing effective journals.

Discussion Boards enable students to learn from one another and use each other as sounding boards to try out ideas. Students should use discussion boards to get ideas for what they might want to talk about in their blogs, and to test ideas before publishing them as blog entries. Discussion boards tend to be informal and the sources and warrants for one's opinions have not necessarily undergone careful scrutiny. Interaction and engagement with other students, in conversation, is the key to effective participation on discussion boards.

Publishing Blog Posts raises the stakes a bit. Although the voice of the author of a blog may be informal, when a student publishes a blog they need to be concerned about accuracy and seek verification of what they are about to publish before they post it. With the blog, your credibility is on the line. If you violate one of the academic virtues you will lose the confidence of your readers in the "real world," and, in the classroom, you will damage your credibility with your teacher, which could hurt your grade. Checking your sources, verifying your facts, and inviting people to participate in the discussion through their comments are keys to good blogging.

So, these are the four arrows in the quiver of project-based learning: Wikis, journals, discussion boards, and blogs. Be sure to make appropriate use of the tool for learning that you happen to be engaged in.

See also: Wikis, Journals, Discussion Boards and Blogs




C. Matthew Hawkins

Keeping a Journal as a Study Tool

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Keeping an academic journal can be a powerful tool for study. When you are reading a primary, or even a secondary, source you will likely come across terms, concepts, names or events that are unfamiliar to you. It helps to keep a journal, where you jot down things that are obscure so that you look them up and find out why they are important in order to get the most out of the text you are reading.

For example, in a history class, if a student is reading Frederick Douglass' Autobiography of a Slave and comes across Douglass' reference to Sheridan's speech for Catholic emancipation, and notes that Douglass said this speech resonated with his own struggle for freedom, it is highly likely that few contemporary readers would know who Sheridan was; what Catholic emancipation was all about, when the speech was made, and why this speech would have any meaning at all to Frederick Douglass, who was an African American slave in the 19th century.

A good use of your journal would be to note the reference in Douglass' text and search for [Sheridan Catholic Emancipation Speech]. Since this is an actual assignment I use in my classes, and since anyone can do this search right now and get the answer, I will not tell you what you will find -- I will let you try it for yourself.

The point is that in your academic journal you want to put your thought processes and problem-solving skills on display. One of the ways to do this is to jot down the terms, concepts, events, and persons who are unfamiliar to you; look them up; and then discuss how what you found is important to the text and enhances your understanding of what you are reading.

See also: Wikis, Journals, Discussion Boards and Blogs

C. Matthew Hawkins