Theories of Constitutional Interpretation

¶ … students opportunity discuss a key political science concept, show a basic understanding academic research reporting skills. Define "loose construction" and "strict construction" methods of constitutional interpretation, and describe how each perspective aligns with formal vs. informal methods of change. The 'strict construction' view of the Constitution has traditionally been aligned with conservatives such as Robert Bork who argue that "a judge interpreting the Constitution" should only consider "the words used in the Constitution [as] would have been understood at the time [of enactment]" (Linder, citing Posner, "Theories").

In contrast, the 'loose construction' view (traditionally aligned with more liberal politics) stresses the need to interpret the Constitution in a manner beyond the letter of the law. There are a number of factors which justices traditionally consider when making constitutional interpretations, including the text itself; likely intentions of the founders; precedents; consequences of the decision in the 'real world;' and so-called 'natural law' (Linder, "Theories").Strict constructionists places greater emphasis on the first three components while loose constructionists also take into consideration the last two (Linder, "Theories").

These two terms, although these ideas have always been in common currency, became particularly significant during the 20th century when the Supreme Court heard a series of seminal cases pertaining to personal freedoms. Loose constructionists believed that certain rights such as privacy, while not specifically elucidated in the Constitution, existed within the penumbra of the document as implied rights, while strict constructionists did not. For example, in the landmark case Griswold v. Connecticut (1965), the justices found that a Connecticut ban disseminating birth control was a violation of privacy rights.

"We have had many controversies over these penumbral rights of 'privacy and repose.' These cases bear witness that the right of privacy which presses for recognition here is a legitimate one" (Griswold, 1965). Later, in the U.S. Supreme Court decision Roe v.

Wade, the majority of the justices, mindful of the social consequences of their decision, agreed to instate a 'trimester' system based upon fetal viability which defined the degrees to which the state interest in protecting the life of the fetus superseded that of the mother's right to privately decide what to do with her body (Linder, "Theories"). However, today, some people feel that so-called conservative 'strict constructionists' are actually taking a more radical interventionist approach than they would care to admit.

Regarding the Court's ruling in Citizens United, one law professor wrote: "the Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns is a stunning example of judicial activism by its five most conservative justices" (Chemerinsky 2010). The decision ultimately neutralized much of campaign finance law, prohibiting critical aspects of the McCain-Feingold Bipartisan Campaign Reform Act of 2002, including a ban on corporations "from paying to broadcast 'electioneering communications' for or against candidates in the final weeks of presidential primaries and general elections" (Chemerinsky 2010).

Corporations exist as fictional 'persons' under the law, which, the majority of the Court argued, entitles them to the same protections as individuals. Many liberals would thus argue that 'strict constructionism' is in the eye of the beholder. Regardless, when the U.S. Supreme Court makes a decision regarding a particular right, the social change is far swifter than when such change is enacted through legislative means. So-called activist decisions such as Brown v. Board of Education, which banned segregation in the public school system, had a profound effect.