That’s Unconstitutional! I always find it interesting when I hear this statement by a TV pundit, or by my students in class, or my friends on Facebook. The US Constitution is a relatively short document (compared to other Constitutions around the world). One will find few passages directly stating how to decide a given issue. When one considers a controversial subject, such as assault rifles, I often ask “Where in the US Constitution does it say assault rifles are legal or illegal?”. Proponents of assault rifles will point to the 2nd Amendment. Those opposed to assault rifles will also point to the 2nd Amendment. How can that be? It is because both sides are interpreting the words of the 2nd amendment in a different way. The 2nd Amendment does not mention assault rifles, it only mentions the right to “bear arms”. Exactly what that means depends on who is reading it. How do we decide who is right? The authors of the Constitution understood this problem, so they set up a mechanism to decide such questions – the US Supreme Court. In other words, those who wrote the US Constitution realized that everybody has a different interpretation of what the words in the US Constitution mean, but somebody has to decide what the US Constitution means, so they created the US Supreme Court. The US Supreme Court has 9 members. Majority rules, so the answer to what is constitutional is whatever at least 5 members of the US Supreme Court says is constitutional, is constitutional. My interpretation, or anyone else’s, does not directly matter. My interpretation only matters to the extent of who I vote for, or get involved or contribute to a campaign for a candidate or amendment , or run for office, litigate, or persuade others to do the same.
There are different ways to interpret the US Constitution. Two of the most prominent ways of interpreting the constitution are known as “strict constructionist” (or originalist), and “living document” (or pragmatist). One of the best known advocates for strict constructionism is US Supreme Court justice Clarence Thomas. He, and others like him, believe that the interpretation of the US Constitution should be fixed, stable, and unchanging. After all, they say, there is a mechanism built into the US Constitution for changing it: Amendments. Why would we need to have amendments, if you could simply change the interpretation of the constitution whenever you wanted? Also, they argue that we need stability in the interpretation of the US Constitution so people can know what the law is, and act accordingly, without thinking it could change tomorrow.
On the other hand, living document proponents, such as US Supreme Court justice Stephen Breyer, believe that the interpretation of the US Constitution should change to fit the times. After all, they say, society is ever changing, and what the US Constitution means should change with it. Also, they argue that there are many issues that come up in society that were never contemplated before, so there is no way to know how the authors of the constitution or anyone in the past would decide whether or not the issue is constitutional or not.
So who is right? They both are: we need a constitution that is relatively stable, that also adapts with the changes in society.