Abstract
In this chapter we examine the ongoing debate about how the U.S. Constitution should be interpreted. Although family law is traditionally the responsibility of the states, there are a few U.S. Supreme court cases that brought about a change in areas once controlled mainly by state laws: the right of parents to control their child’s education; the right of children to freely express their political or moral views in school; and the right of married couples to use artificial contraception. We briefly look at these cases in order to get an understanding of the debate between proponents of two broad categories of theories of constitutional interpretation: Originalism and Non-originalism. Originalist theories insist that the only considerations to use when interpreting the Constitution and its provisions are those that are temporally “fixed” to the time when they were written or ratified. Non-originalism denies this and considers such non-temporal factors as the purpose of the Constitution or the underlying moral philosophy that might have inspired its authors. All of the interpretations are normative. They attempt to answer the question as “Why ought the justices on the Supreme Court to defer only to the intentions of those who wrote the Constitution and its amendments or to the intentions of those who had a hand in the ratification of these documents? “What moral standing do the framers, ratifiers and the general public in the 18th century have that gives them the final word on interpretation?” We begin the chapter by looking at how the word “person” was originally used in the Constitution in order to get some perspective on “originalist” theories of interpretation. We then examine three U.S. Supreme Court cases involving family law in order to illustrate the persistent arguments that occur over how the doctrine of stare decisis is employed, and in the final sections of the chapter, to show how the various theories of constitutional interpretation have been employed by justices and legal scholars when deciding these and other cases that have come before the U.S. Supreme Court.
“We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system.“ – J. Wm. O. Douglas, Griswold v Connecticut (1965)
“With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.” – J. Potter Stewart, Griswold v Connecticut (1965)
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Notes
- 1.
Chisholm, a citizen of South Carolina and executor of the estate of a South Carolina merchant, sued the State of Georgia in the U.S. Supreme Court to recover the value of clothing supplied to Georgia during the Revolutionary War. Georgia refused to appear, on the ground of sovereign immunity. A majority of the Court rejected this claim and rendered default judgment against the State.
The relevant sections of Article III of the Constitution referenced by the Court are these:
Section 1
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
- 2.
Congress had passed the Judiciary Act of 1789, giving the Supreme Court original jurisdiction over writs of mandamus. (These are judicial orders to any government subordinate court, corporation or public authority to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing)—and which is in the nature of public duty, and in certain cases one of a statutory duty.) Justice Marshall held that Congress does not have the power to modify the Supreme Court’s original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act conflict. This decision settled the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall ruled that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution.
- 3.
In Chisholm v Georgia, Justice Wilson argued that the doctrine used to decide the case “rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself.”
- 4.
“The ‘plain meaning’ or ‘textualist’ theory of interpretation is not a theory at all; it is instead a description of what happens when constitutional meaning is not problematic” (Post 1990).
- 5.
Meyer is usually discussed with another case in which the Court reached a similar decision: Pierce v Society of Sisters 268 U.S. 510 ( 1924 ). In Pierce the Court held unconstitutional the Oregon Compulsory Education Act of 1922 that required all normal children between the ages of 8 and 16 years to attend public school. This was held a violation of the Fourteenth Amendment in that the Act “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control” (573). No mention is made of the right of a child to choose to attend a public or private school. Instead, the only concern of the Court with children is to stress the judgment that in a conflict between their parents and the state over the general question of who should “nurture and direct [their] destiny,” the parents should prevail.
- 6.
See fn 5 for a description of Pierce v Society of Sisters.
- 7.
For example, Justice Scalia quotes from a 1794 thesaurus, and two other eighteenth century dictionaries in order to assure readers that the word “arms” in the Second Amendment meant “firearms” or “weapons of offense or armaments of defense.” He also traced the individual right to bear arms to 1689 England as the result of the abuses of the Stuart kings Charles II and James II when they used select militias loyal only to them “to suppress political dissidents, in part by disarming their opponents” (Scalia in Heller, 59).
- 8.
Douglas Lindner (2011) has organized the following list of pro-originalist arguments: (1) Originalism reduces the likelihood that unelected judges will seize the reins of power from elected representatives. (2) Originalism in the long run better preserves the authority of the Court. (3) Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria. (4) Lochner v New York (widely considered to be a bad non-originalist decision). (5) Leaving it to the people to amend their Constitution when needed promotes serious public debate about government and its limitations. (6) Originalism better respects the notion of the Constitution as a binding contract. (7) If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?] (8) Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.
- 9.
This is the author’s name for the argument.
- 10.
Olmstead was reversed in 1967 by Katz v. U.S.
- 11.
Lindner (2011) provides a helpful list of some of the arguments in favor of non-originalism: (1) The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation. (2) No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps. (3) Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It’s better than flipping a coin. (4) Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.) (5) Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities. (6) Brown vs Board of Education (on originalist grounds, it was decided incorrectly). (7) Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose–the animating spirit–of the Constitution was the protection of liberty, and we ought to focus on that. (8) Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.
References
Altman, Andrew. 2001. Arguing About Law: An Introduction to Legal Philosophy. Belmont: Wadsworth.
Black, Hugo. 1960, April. The Bill of Rights. New York University Law Review, Vol. 35.
Bork, Robert. 1990. The Tempting of America. New York: Free Press.
Breyer, Stephen. 2004. Active Liberty: Interpreting Our Democratic Constitution. The Tanner Lectures on Human Values. http://tannerlectures.utah.edu/_documents/a-to-z/b/Breyer_2006.pdf. Accessed 21 Sept 2016.
———. 2005. Active Liberty: Interpreting Our Democratic Constitution. New York: Random House.
Chisholm v Georgia 2 US 419 (1793).
Dworkin, R. 1988. Law’s Empire. Harvard University Press.
———., eds. 1997. The Philosophy of Law. New York: Oxford University Press.
Fallon, Richard H. 1999. How to Choose a Constitutional Theory. 87 California Law Review 535.
Ferguson v. Skrupa, 372 U.S. 726 (1963).
Griswold v Connecticut, 381 U. S. 479 (1965).
Lewis, Jone Johnson. 2014. Women in U.S. Constitutional History: Sex Discrimination. http://womenshistory.about.com/od/laws/a/Constitution-Sex-Discrimination.htm. Accessed 8 Apr 2016.
Lindner, Douglas. 2011. Theories of Constitutional Interpretation. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html
Marbury v. Madison, 5 U.S. 137 (1803).
Meyer v Nebraska, 262 U.S. 390 (1923).
Pierce v Society of Sisters, 268 U.S. 510 (1924).
Planned Parenthood of Southeastern Pennsylvania v Casey, 505 U.S. 833 (1992).
Post, Robert C. 1990. Theories of Constitutional Interpretation. Faculty Scholarship Series. Paper 209. http://digitalcommons.law.yale.edu/fss_papers/209/. Accessed 8 Apr 2016.
Scalia, Antonin. 1988. Originalism: The Lesser Evil. 57 University of Cincinnati L. Rev. 849.
———. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press.
Schopp, R.F. 2016. Education and Contraception Make Strange Bedfellows: Brown, Griswold, Lochner and the Putative Dilemma of Liberalism. College of Law, Faculty Publications Paper 98. http://digitalcommons.unl.edu/lawfacpub/98/. Accessed 8 Apr 2016.
Smith v. California , 361 U.S. 147 (1959).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
West’s Encyclopedia of American Law, 2nd edn. 2008. New York: The Gale Group, Inc.
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Houlgate, L.D. (2017). Constitutional Interpretation. In: Philosophy, Law and the Family. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-51121-4_4
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