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The Changing Court: A Look at Constitutional Interpretation

from the November 01, 2005 eNews issue
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President George W. Bush nominated Judge Samuel A. Alito Jr. to the Supreme Court on Monday in the place of Harriet Miers. Miers withdrew last week after receiving less than a warm reception from Bush's conservative base (whether or not deserved). On the other hand, Alito's nomination has pleased conservatives. He has a well-established judicial career marked by faithfulness to the Constitution, even while sitting on one of the nation's most liberal courts.

The fifty-five year old Alito has served on the United States Third Circuit Court of Appeals since 1990. He was born and raised in New Jersey, the son of an Italian immigrant. He earned his B.A. from Princeton and his J.D. from Yale Law School. He has taught courses on Constitutional Law, terrorism, and civil liberties at Seton Hall University School of Law - where he was recognized for his "outstanding contributions" to the field of law.

According to the Washington Post, Alito's friends describe him as another John Roberts with a longer paper trail. They say he's "a studious, diligent, scholarly judge with a first-rate mind and a deadpan sense of humor, a neutral arbiter who does not let personal beliefs affect his legal judgments."

One of Alito's most appealing qualifications for the Supreme Court is his originalist (or constructionist) judicial philosophy. While the extreme liberals in the Senate have expressed concerns about Alito's support from the "far right", those liberals have shown how out of touch they are with the common American. President Bush promised to nominate "strict constructionists" to the Supreme Court, and has steadily fulfilled that pledge to the American people who voted for him.

What exactly is a strict constructionist? How does that philosophy differ from the "living Constitution" view of the liberal judges on the high court?

Originalists believe the words of the Constitution mean what the Framers intended them to mean. When there is a question about a text, originalists go to the documents written by the Framers to get clarification. The Federalist Papers, contemporary letters, and notes from the Constitutional Convention can shed light on ambiguous terms in the text of the Constitution.

Originalists honor the first Article of the Constitution, which gives Congress the job of creating federal laws. An originalist judge will not attempt to impose his own views on society by "legislating from the bench". The federal judiciary's job is to apply the laws that the elected representatives in Congress make - and ultimately to apply the Constitution.

On the other hand, modernists (or instrumentalists) look at the Constitution as a "living" document. They feel free to interpret it in accordance with the ever-changing views of society. They argue that the Framers could not foresee the future and so they take upon themselves the responsibility of "filling in the gaps." This method of interpreting the constitution has been used to legitimize homosexuality and to grant pregnant women the “fundamental human right” to have an abortion.

Originalists, like Samuel Alito, argue that the modernist method of interpretation makes mush of the Constitution. Congress and the individual states, they argue, have the best position, and the legal authority, to represent society's modern values - as opposed to non-elected judges.

"If you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year... If you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society - if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask." - Supreme Court Justice Antonin Scalia.