There is no better time to view the sense of heightened partisanship (and immaturity) in our country than now, as the primary season continues at full throttle. Every Republican is out to not only bash President Obama, a Democrat and therefore a staunch enemy, but also their fellow Republicans in the battle to gain the party’s nomination. These differences transcend a mere trivial nature – people simply don’t argue just for the sake of arguing – or do they?
Today, too many people, in fact, do argue for the sake of argument. A Tea Partyer doesn’t want to negotiate with a Democrat because it might make his constituency mad, when really that negotiation might be the best thing to do; likewise, a liberal doesn’t want to look like he’s caving in to the Republicans he’s working with to achieve bipartisan reforms. On more of a local level, a lot of people think it’s cool to either call themselves conservative or liberal; they argue blindly, without truly understanding these ideals.
Even if you do understand what these terms mean, it becomes an all or nothing attitude; too often, people think that to be liberal, they have to adhere to all the liberal stances, and to be conservative, they have to do the reverse. In reality, however, the human mind does not work this way – nor does a consistent interpretation of the Constitution.
Strict constructionism vs. loose interpretationism
Traditionally, conservatives tend to approach the Constitution with a strict constructionist outlook: the words in the Constitution mean what they mean, in the context that the founders wrote them over 200 years ago, and nothing more. There are no other rights than those specifically stated in the Constitution, and those rights that are enumerated cannot be construed to include other rights that liberals argue are implied. Liberals, on the other hand, tend to adhere to a school of Constitutional reasoning referred to as loose interpretationism, which as the name implies, takes Constitutional clauses and interprets them loosely.
It was a liberal victory, for instance, when Justice William O. Douglas wrote that there were penumbras that emanated from crucial rights in the Constitution that encompassed a right to privacy. Conservatives, in contrast, hailed this milestone in civil liberties as legal fiction.
Despite the important role that loose interpretation has played in the burgeoning role of civil liberties and rights in this country, utilizing this approach in the way that many liberals are using it today has led to a warped sense of liberalism. Strict constructionism, likewise, has also led to a series of inconsistent and hypocritical decisions.
Conveniently switching views of the Constitution
Such a sense of warped liberalism, for instance, can be seen through liberals’ stances on gun rights. Although I consider it one of the vilest rights in Constitutional history, it’s important all the same. The first thing Hitler did, for example, when he marched into Denmark was to gather the names of everyone who owned registered guns and proceeded to take them from them. We all know what happened next. Now, am I saying that we’ve broached at all upon such an extreme state? Of course not. But throughout the history of mankind, there seems to be a direct relationship between despotism and deprivation of a person’s ability to defend himself, as much as I hate to recognize that there is such a right.
This right to privacy Douglas talks about in Griswold – a right central within a democratic country – certainly should include the right to own a firearm (however, I do not believe in concealed carry). It is an individual right much like the other rights in the Constitution, with one exception – guns can be deadly. This deadliness should of course be taken into account, and it would be appropriate to institute a rigorous licensing process to own guns, but in the end, the conservative block of the Supreme Court was right when it voted to strike down the District of Columbia’s hand-gun ban in D.C. v. Heller (2007).
Loose interpretationism, as traditionally defined, can only be a way to expand civil liberties because, as Douglas wrote in Griswold, loose interpretationism involves recognizing the penumbras that are formed from the emanations from the explicit rights of the Bill of Rights. In this manner, if liberals were to apply loose interpretationism consistently, there would be no logical explanation for the Democratic Party’s current stance on gun rights.
The hypocrisy only continues. Consider liberals’ stance on corporate donations. Typically strong supporters of freedom of speech, liberals, in this instance, have fallen back on the framers’ original intent by stating that the founders could not have envisioned freedom of speech in this capacity because there were no companies like the mega-corporations that exist now, and therefore, companies do not have First Amendment rights. Or even individuals don’t have First Amendment rights to donate as much as they want. Although these very same liberals have heralded loose interpretationism as crucial among Constitutional values, they reverted back to some form of the strict constructionist approach that clearly does not resemble the loose interpretationism form utilized by Douglas in his Griswold (privacy) decision.
The conservatives of the court also faltered when they made this decision; they, for some reason, decided to use more of a traditional loose interpretation approach – a method they have typically decried in the past.
I strongly believe that the Constitution, if it is to remain an important and relevant part of our country’s law, must be capable of change and it must be capable of progress. However, the same liberal judges and advocates who pushed for progress in so many other areas of the law for so many years have fallen short in yet one other major current controversy: affirmative action and the minority-majority district.
The NAACP, one of the most racially liberal institutions in the country, is a staunch supporter of the ideas of affirmative action and the minority-majority district. Essentially what the NAACP is saying is that African Americans (and other minority groups) should get special preference or consideration in certain situations because of their race – a practice that is particularly rampant in college admissions.
So the question becomes this: why is the NAACP pushing for these things? What happened to Thurgood Marshall and the NAACP’s brief in Brown v. Board of Education, in which they pushed for an abolition of racial classifications and pushed for desegregated and integrated schools? Liberalism should be about progress. Liberalism should be about positive change. Liberalism should be about bucking the status quo when the status quo is unjust or unconstitutional.
Liberalism, however, should not be about hampering that change. Liberalism should not be perpetuating racial classifications into a new century, only increasing interracial boundaries. We, as Americans, have to be able to celebrate racial diversity and the various rich cultures of which the U.S.is comprised, but must also be able to see that our similarities far outweigh our differences – political, racial or otherwise. Today, too much, we focus on those differences, which leads to a fractionalized and argumentative society. The Constitution has got to be put into modern context in an age far removed from the heinous Jim Crow laws of the South.
Forget labels, but consider modern context
Thus, while hypocrisy abounds, the best thing to do is to forget about labels, when they can be avoided, and put the Constitution into modern context. Part of the reason that strict constructionism falters is because strict constructionism to begin with is a flawed concept: there is no mechanism for its application to modern developments.
Although conservatives often seek to ridicule loose interpretationism, it is a much more logical approach that encompasses modern context; thus, the question no longer becomes what would the founders think about this – a question that is ultimately impossible to answer – but rather, in today’s society, how does the Constitution, constantly evolving by the modern changes in society, apply to a particular issue.
Too often, conservatives decry liberals for tampering with the founder’s words, thus, insulting the integrity of the Constitution itself. This, however, is certainly not the case if liberals were to interpret the Constitution through a consistent loose interpretationistic approach. When truly applying loose interpretationism to an issue, the words of the Constitution remain constant. It will always ban cruel and unusual punishment. It will always protect freedom of speech. It will always forbid unwarranted searches and seizures.
In this way, I am an originalist. I firmly adhere to the rights within the Constitution as the founding fathers wrote them more than 200 years ago. It’s only the things that these rights encompass that change – expand. The founders surely thought that hanging was not cruel, but standards within society change. The founders could have never conceived of such a thing like the Internet, but that doesn’t mean that speech on the Internet is not protected. A similar concept applies to sensors and phone-taps and monitors with regards to the Fourth Amendment as well.
So perhaps I should create my own term, original interpretationism: taking the original words of the Constitution and framing them to meet the evolving standards of our society. Is that a compromise worth writing about – a novel Constitutional ideal that would be beneficial to be cognizant of in the future? I certainly feel that it is. This is what loose interpretationism truly should be.
Focus on interpreting consistently and justly
In the face of so much hypocrisy, the thing to do is not to abandon loose interpretationism altogether. Rather, it is to define it in a way that does not enable hypocrisy. The first thing that is important to understand is that there are certain explicit rights within the Constitution, such as the right to freedom of speech and the right to counsel at a trial.
But what conservatives forget is that there’s also a Ninth Amendment, which says that not all rights that the people possess are explicit in the Constitution. The right to privacy for instance, which fuels the ensuing debate about abortion. The need for the Commerce Clause to expand is a similar issue to incorporate changing standards of the government’s role in democracy. Is there no such mechanism for expansion and reform within the Constitution, as conservatives would have you believe? Is there no such way to use the current words of the document to meet new needs of a society? Such a belief is narrow-minded, and those who adhere to such a school of thought are too insecure in their own intellect to break the bonds and implicate other rights not on the page.
The beauty of the Constitution is that it is short and it is vague. It’s to the point but flexible – enabling it to be dynamic and living. Because of these things, it has survived. Excessive amendments are neither needed, nor would they be a positive thing for the supreme law of the land. They would only weaken the original text and debase our chief governing document.
The second thing that has got to be understood as well is that loose interpretationism is based on common sense, a factor missing in the strict constructionist approach. Yes, perhaps, the Constitution does not say that the government has to provide alleged criminals with attorneys, but how else are some of them going to get the Sixth Amendment right to counsel? Yes, perhaps, the Constitution does not say that rights have to be read to defendants, but what good does the Bill of Rights do if the defendant does not know his rights in the first place? Yes, perhaps, the Constitution never states that there is a right to privacy, but the lack of one is a time-tested recipe for totalitarianism. Yes, perhaps, the Constitution does not include a right to expression or flag-burning, but isn’t the First Amendment’s right to freedom of speech close enough? Yes, perhaps, the Constitution never meant for school prayer to be abolished, but we know from practical experience that theocracies are righteous dictatorships.
This is the logic behind loose interpretationism; this is the true, consistent way of doing things. Let us be the ideology of progress and change, unlike our counterparts who fight to preserve the status quo, when many times it is unjust.
There are two main prongs of loose interpretationism: flexibility and modern context. Let us apply them consistently, and let us be just.