"The Impact of Values Upon Constitutional Interpretation and Application"

Written by Christopher Geidner

The United States Constitution is widely regarded as one of the most near-perfect governing documents in the history of the world. Our nation, the "experiment in democracy," has been constantly challenged to define the broad concepts which were made a part of our Constitution. At the outset, it was quite simple to turn to the writings of the framers, and to discuss the true meaning of the phrases and concepts. The concepts were solidly rooted in the problems of the day. At the same time, however, the framers were intent upon making this a "living document," a constitution which would be able to withstand the test of time. The framers used the knowledge and ideas of the day to create a responsive representative democracy. The words used in that document still guide us today. How, over 200 years after its drafting, can the words of the Constitution still be applicable to our lives and problems?

In his book, The Partial Constitution, Cass Sunstein spends a great deal of time discussing this question of applicability. In order for the Constitution to continue to serve as the "Supreme Law of the Land," certain interpretation standards must be set. Most of the questions of these standards for interpretation rest upon the influence of morals or values upon the language of the text. Sunstein discusses several of these standards, both their advantages and, more often, their disadvantages. In his discussion of the formalist and originalist approaches, Sunstein shows that their strict interpretation of the words contained in the Constitution would render our modern concepts of rights and liberties invalid and unwarranted. In one of his near-rants criticizing Robert Bork’s theory of originalism, Sunstein states that,

"The consequences of this view are not obscure. There is no right of privacy. Indeed, liberty receives no substantive protection under the Fourteenth Amendment. Rational basis review -- effectively ensuring validation -- would apply to all forms of discrimination other than those based on race and ethnicity. So too, discrimination on the basis of gender, or on almost any other basis, is likely to be upheld...The federal government can discriminate on the basis of race or indeed on any other ground..."(Sunstein, p. 97)

Sunstein correctly asserts that "the breadth of the words of the Constitution invites the view that its meaning is capable to change over time" (Sunstein, 99). It is with this statement that Sunstein hits the crux of the debate. Both the formalists and the originalists, as well as the slightly more rational positivists feel that the text of the Constitution is all that is necessary to reach a conclusion about Constitutional law. Legal positivism claims that what the law is, as opposed to what it should be, ought to be the guiding principle in interpreting the text of the Constitution. Robert Dworkin, a great opponent of legal positivism, states that the legal positivist’s "plain fact" method of interpretation is not quite so plain. Dworkin attacks this "plain fact" theory in stating that disagreements about what the law is are actually disagreements about "‘the best constructive interpretation’ of some past legal event" (Sunstein, 111).

These interpretive conservativists do not, as Sunstein points out multiple times, support their interpretive choices with defined, "substantive arguments." Sunstein states that "Bork’s claim is that the binding character of the original understanding is settled by the original understanding. This is not an argument at all; it is circular..." (Sunstein, 99). This "circular" rationality is found throughout the conservative interpretive methods, and thus none of the methods seem academically justifiable.

The far liberal end of the spectrum, points out Sunstein, is no different from the far conservative end. The "circular" logic of the conservatives continues on the liberal end, with conventionalism and indeterminacy. These two theories seem realistically inapplicable to Constitutional interpretation, but the balance created by these concepts will serve to demonstrate the importance of the modified formalism interpretation discussed later. Conventionalism espouses that the meaning of the text and even independent words are decided upon by those in power, and that it is only by this method that Constitutional decisions are made. This power forms a great constraint upon the text, according to the conventionalists, and those in power need not give a "reasoned defense" of their interpretation. The indeterminacy thought is that since every part of the text is "indeterminate, undecidable, or irreducibly ‘political’ or ‘subjective,’" the interpretation of said text is arbitrary or power-based. (Sunstein, 114)

The liberal methodologies, similar to the conservative methodologies require, as a pretense of their existence, that no burden of proof be placed upon them. There is no "substantive argument" to justify these interpretive methods. They are all based upon two factors held in absolute regard. The text and the context of the Constitution. They are in fact, anti-interpretations, not allowing for the necessary external factors of "substantive argument" in order to reach Constitutional decisions.

Those who espouse these theories, from both the far left and right, feel that text, structure, and history -- Sunstein’s factual factors for interpretation -- are all that is needed, and in fact, all that can be used in Constitutional interpretation. This is simply not true. Sunstein’s three factors, which I reduce to two, text and context, cannot be all that is used in constitutional interpretation. Quite obviously the first test in constitutional interpretation should be the text. Text, in and of itself, will not always, resolve the problem. Sometimes the structure of the text must be taken into account in order to resolve Constitutional issues. When the structural context is not fully able to explain the placement of the text, historical context may be necessary.

Sometimes, however, text and context do little to realistically resolve the Constitutional issues of our day. I would espouse that, upon completion of this formalism scale, some questions may remain as to the Constitutionality of many issues. The Courts and legal scholars must then turn to what Sunstein calls "substantive argument" as a fourth stage of Constitutional interpretation. Sunstein’s point in discussing the "substantive argument" is quite simply that sometimes the framers had no idea of the issues under which their provisions would be called into question. While it is quite clear that Internet indecency would be a Constitutional issue discussed under free speech, no one can argue that the Constitutional framers had the World Wide Web in mind when writing the First Amendment. This in turn, leads to the necessary adoption of some "substantive argument" to resolve the issues not covered under text or context.

The fault of many structuralist interpretations of the Constitution would be to state that the Internet was quite obviously contextually not in the mind of the framers when drafting the First Amendment. These interpretations would then resolve that Internet publications are not contained under the First Amendment. This logic is faulty at best. Using the structuralists own logic, this interpretation is not sound. The text of the Constitution quite obviously protects speech as a generic concept. If one considers Internet statements and publications to be speech, we need to then turn to the question of structural context. Has written speech been held to fit into the contextual definition of "speech?" Responding yes to this statement, then brings us to the sticking point, in the mind of the structuralists.

Historical context does not provide us with any idea as to the Constitutional framers thought in regard to the Internet. Many formalists would state that, due to this lack of historical context, Internet communication is not covered under the First Amendment. The indeterminacy advocates would argue that the lack of contextual clarity will lead us to an arbitrary decision. I would argue that when one of these debates over text or context arises, the most non-arbitrary and historically-fitting solution is, rather than to drop the issue from Constitutional protection, to move the issue to a fourth stage of "substantive argument." This allows a defense to be garnered for and against the Constitutional question at hand. The "circular" logic of the structuralists would lead us to not even consider the Constitutional question at hand. The four-prong modified formalism allows all constitutional inquiries to receive the proper and necessary attention that they deserve.

The immediate concern of the structuralists would be as to the legitimacy of this "substantive argument." They would argue, in fact, that the concept of "substantive argument," as it is not mentioned specifically in the Constitution, has no place in Constitutional law. As Sunstein states,

"All of them stress the incapacity of interpreters to mediate, through discussion and argument, the different views about which principles ought to be invoked in considering the meaning of the Constitution...it does not follow that the process of reason-giving is a charade or that we are left simply with whatever people now happen to think" (Sunstein, 115).

In order to assure that personal values and morals are not imposed upon society, both extremes of the interpretation debate oppose the very idea of democratic debate. They attempt to justify, without explanation, the denial of democracy in their perverted pursuit of democracy. The "substantive argument" theory that Sunstein espouses in The Partial Constitution is the only rational, logic-based response to the structuralist’s legitimate concern for the future viability of the Constitution. The structuralists wish to reach the "true" meaning of the text, without the burden of value-based choices. But where does this "true" meaning come from, and are value-choices necessary to reach the "true" meaning of the Constitution?

In Henry Abraham and Barbara Perry’s book, Freedom and the Court, this question of "true" meaning is rephrased in the form of discussing the interests at hand. They state that we are in "a constitutional democracy, based upon a government of limited powers under a written constitution and majoritarianism duly checked by carefully guarded minority rights" (Abraham, 3-4). Along with this concept comes that notion that the "true" meaning of the Constitution falls somewhere between the concept of Abraham’s "majoritarianism" and the "carefully guarded minority rights." This is, in and of itself, a value judgement based upon hundreds of years of philosophy and legal discourse. These value-choices are often found sprinkled throughout our judicial history. For example, Justice Black states that

"Freedom to speak and write about public questions is as important to the life of our government as is the heart of the human body. In fact, this privilege is the heart of our government! If that heart be weakened, the result is debilitation; if it be stilled, the result is death" (Abraham, 154),

There is an obvious value-choice taking place in Justice Black’s generally accepted statement. This and the many other value-choices in our Constitutional history are an important and dependent part of the interpretation of the Constitution.

In implementing the fourth, or "substantive argument," stage of modified formalism, this value-choice is made. Sunstein concurs with the validity of this concept of a mixed relationship by stating that "any dispute about interpretive principles must be resolved through an exploration of what sort of constitutional system will be produced by one set of principles rather than another" (Sunstein, 117). Whenever the legitimacy of one interpretive principle over another is decided, a value-choice has been made. This "exploration" leads to a value-choice which is neither unintended nor undesirable. In addition to providing a more realistic democratic discourse of Constitutional issues, the modified formalism, with its value-choices, will take into account the major flaw of formalism -- that it "disregards the inevitable use of interpretive principles -- value-laden, potentially unjust, and created by human beings -- in giving meaning to legal texts" (Sunstein, 118). By providing the tools to create an open discourse of the issues at hand, as opposed to covertly applying value judgements in the form of non-interpretive "formalist" decisions, modified formalism would legitimize this necessary component of Constitutional interpretation. It is important to note that even without modified formalism, however, value-choices would be made, as discussed in Sunstein’s "inevitable use" discussion, cited above.

Value-choices will always be present in legal and political disputes, and the goal of any democracy should be to contain these value-choices within a defined structure. This structure must be answerable to the people as to avert it from reaching the point of the conventionalists. It cannot, however, in avoiding the conventionalists "power-Court" limit the Court to Bork’s radically restrictive "originalism." In attempting to avert the ever-present influence of values, both of these concepts allow for the complete value-manipulation of the Court, and therefore the Constitution, without question or "substantive argument." Modified formalism is the logical balance to be found upon realization of the importance of both a defined interpretive methodology and a legitimate, substance-based value-choice.

This paper was initially submitted for the following class:

Law and the Political System; Dr. Ivers; American University; Washington, DC