Interpreting the Constitution objectively

For several decades now, legal professionals have been debating how best to interpret the Constitution. One school of thought touts the “living Constitution” whose meaning changes over time as new “social realities” arise. Another school of thought, “originalism,” holds that the document means what it was understood to mean when ratified.

Each viewpoint has its detractors. Opponents of the living Constitution argue that it eviscerates the rule of law by granting unelected judges the power to legislate. Opponents of originalism, on the other hand, object to the idea that twenty-first century Americans must be shackled to the erroneous, outdated knowledge of men who lived hundreds of years ago.

What has been missing from this debate is any suggestion of a workable theory that avoids both types of objection. So far, no one has offered a method by which judges can objectively adhere to the drafters’ original words, while simultaneously taking account of all the moral and scientific progress that has occurred since the Constitution and its various amendments were ratified.

That situation may be improving, however, thanks to the efforts of a professor of philosophy at the University of Texas, Tara Smith. In an article for the journal Constitutional Commentary, Dr. Smith offers a philosopher’s perspective on the debate and points the way toward a new theory that promises to resolve the dispute permanently.

Originalism, she writes, is an “impressively resilient doctrine” that is ultimately untenable. Why? Because it assumes that “words lack objective meaning,” and therefore the best judges can do is discover “the historical fact of what the understanding of particular words was at the time of the law’s enactment.”

Smith trains a philosophical spotlight on this originalist argument, bringing to bear the insights of epistemology, the science of knowledge. Originalism is mistaken, she asserts, in supposing that words lack objective meaning. “Concepts are objective,” she states—a big, controversial statement that introduces a lucid discussion of Ayn Rand’s Objectivist epistemology and how it can be applied to the problem of interpreting legal language.

Just to mention one of many examples, she discusses why the concept “religion” in the First Amendment, objectively interpreted, includes Mormonism—even though that sect had not been conceived when the First Amendment was ratified in 1791. Although other philosophers and legal scholars have discussed epistemology with regard to such questions, Smith’s work stands out by virtue of its unique application of Rand’s theory. Smith’s overarching theme is fully stated in her article’s title: “Originalism’s Misplaced Fidelity: “Original” Meaning Is Not Objective.”

Smith makes no claim to have articulated a full theory of legal interpretation, characterizing her article “only a step in that direction.” Even so, her article is packed with far more insights than a single blog post could possibly indicate without verging upon the facile. Those with a serious interest in constitutional interpretation should lay their hands on Smith’s article and read it thoroughly.

Image: Wikimedia Commons

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