From May 25th to September 17th 1787, the 55 delegates of the Constitutional Convention met to draft what would become the Constitution of the United States. When the Constitution of the United States took effect on March 4, 1779, it became the supreme law of the land. For the past 238 years, the Constitution and its amendments has been the guiding document for the governance of the United States of America. As contemporary legal issues arise, the Supreme Court seeks to interpret the Constitution in order to apply it to the contemporary issue brought before the court. Over the centuries there have been numerous debates about the best way to interpret the Constitution. Today, the Constitution is interpreted through the lenses of the “Original Intention Theory”, the “Non-interpretivism” manner and the “Interpretivism” manner. After briefly evaluating these three schools of constitutional interpretation, while considering a Catholic understanding of the common good, it will become clear that the middle way of interpretivism is the preferential way to interpret the Constitution of the United States.
When trying to interpret the meaning of a law, it is essential to understand what law is. St. Thomas Aquinas recognizes that law “regards first and foremost the order to the common good.”[1] The Constitution’s preamble makes it clear that the Constitution was created by the people of the United States with the purpose of securing the common good for the people of the United States of America. This pursuit of the common good recognizes that the country is composed of individuals and so the good of the country as a whole is related to the good of the individual citizen. The common good is “a perfection of a whole, such that the parts of the whole share individually and collectively in the perfection.”[2] It is rooted in the understanding that each person must not only contribute to the good of society but also share in that good. Any interpretation of the Constitution, then, must ensure that every person in the nation, shares both individually and collectively in the perfection that the law seeks.
One way of interpreting the Constitution is called the “Original Intention Theory.” Originalists seek to interpret the Constitution by attempting to understand how the authors of the Constitution would have interpreted it. They argue that the intentions of the original composers of the Constitution can be discerned through a literal reading of the Constitution and understanding the debates and writings of the framers of the Constitution. Once the original intention of the Constitution has been determined, a judge simply must rule according to that original intention.
While the originalist manner of interpreting the Constitution gives proper respect to the framers of the Constitution, helps to prevent judicial abuse, and provides for a consistent law over time, it has numerous weaknesses. Firstly, the Constitution was never intended to cover everything. Rather, the Constitution provides for elected officials to make proper legislation. Secondly, the originalist manner fails to take into account contemporary legal issues. There are many contemporary issues like the use of the atomic bomb, which the Constitution did not address and the framers of the Constitution could not have even imagined. Thirdly, while there are many records of proceedings from the Constitutional Convention, as well as many writings of the original framers, these records are incomplete making it impossible to truly discern the literal intentions of the framers of the Constitution. Lastly and most importantly, the originalist position fails to recognize that while the Constitution seeks to satisfy the common good, an originalist interpretation prohibits the Constitution from fulfilling its obligation to the common good. Since the common good is oriented towards the perfection of the whole and the whole can change over time, the common good can change overtime. This change in the common good was clearly seen in World War II. During the war, the common good, demanded that citizens make extreme sacrifices to support the war effort, including giving up certain liberties which would not be for the common good in times of peace.
While the “Original Intention Theory” denies the common good by going to the extreme of preserving only the original literal intention of the framers of the Constitution, the “Non-interpretivism” means of interpreting the Constitution denies the common good by going to the other extreme of giving power to a few limited justices. The “Non-interpretivism” theory claims that the framers of the Constitution, never intended for the Constitution to be frozen in time. They argue the Constitution was intended to be a living document that changes as the needs of the nation change.
In the Non-interpretivism theory, the Supreme Court serves as an ongoing constitutional convention. They constantly modify, and reinterpret the Constitution to meet the needs of current generations of Americans. The justices, seek to understand the spirit of the Constitution, and apply that spirit to current situations. While this position rightly takes into effect, the need to apply the Constitution to the many changes that have occurred in the past 200 years which the framers of the Constitution could never have imagined, it destroys the separation of powers created in the Constitution and goes so far as to create an aristocratic system of government. The Non-interpretivism theory creates the exact system of government the framers of the Constitution were trying to avoid when they drafted the Constitution, by making the justices of the Supreme Court the supreme legislators of the country. Anytime a few elite people possess total power, a government runs the risk excluding the contributions of many members of society while also denying them the benefits of the society, leading to the destruction of the common good.
When confronted with two extremes, the moral means often rests in the middle. St. Thomas Aquinas says, “between excess and deficiency the mean is equality or conformity.”[3] The middle way between the excess of the Non-interpretivism theory and the deficiency of the original intention theory is the Interpretivism manner of interpreting the Constitution. The Interpretivism manner recognizes that the founders who wrote and ratified the Constitution believed in certain principles that they considered essential to the United States of America. These fundamental principles were incorporated into the Constitution and they can only be changed by amending the Constitution. This manner of interpreting the Constitution sees the role of the judicial system to apply new facts to those fixed and binding principles laid out by framers of the Constitution to arrive at just conclusions.
The middle ground of Interpretivism has the positive advantages of upholding the original meaning of the Constitution while allowing it to address situations that arise in a contemporary context which the framers of the Constitution could not have imagined. At the same time this theory guards against the extreme of non-interpretivism by forcing justices to uphold the law without adding their own views to the law. Ultimately, in guarding against extremes and deficiencies, the Interpretivism school leads to a just society founded on the true understanding of the common good.
While the Constitution has guided the United States of America for over 230 years, America today is a vastly different country then it was when the Constitution was ratified. Through the years the Supreme Court has been tasked with interpreting the Constitution and applying those interpretations to the laws of the country to ensure that the common good is upheld in America. Today there are three major schools of constitutional interpretation. The Original Intention theory which prevents the Constitution from fulfilling its obligation to the common good, by failing to realize the common good can change over time. The Non-interpretivism theory, which can easily lead to a situation where America is ruled by a few elite judges, placing the common good at risk of being subordinated to the good of those judges. The interpretivism theory, draws a middle ground between the non-interpretivism theory and the original intention theory and protects the common good, by upholding the fundamental principles of the Constitution while applying them to the changing needs of America.
[1] Thomas Aquinas, Summa Theologiae (vol 2). Notre Dame, IN: Ave Maria Press Inc, 1981. I-II. Q 90. A4. Commentary
[2] Vernon Bourke, Ethics (New York: The Macmillan Company, 1951), 416.
[3] Thomas Aquinas, Summa Theologiae I-II. Q 64. A1. Commentary
Through The Cross To Light 