Part 2 – What modern threats does the U.S. Constitution face?

Part 2 - scene_at_the_signing_of_the_constitution_of_the_united_states

Constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily always correctly.(99) Constitutional controversies are about whether an official act is consistent with, and authorized by a Constitution or constitutional statute or court decision.(100) Since a Constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts which have a textual expression, the principles of constitutional interpretation are essentially the same as the principles of statutory or judicial interpretation themselves.(101)

Most legal scholars recognize seven methods of interpretation: Textual, Historical (also called Originalism), Functional, Doctrinal, Prudential, Equitable, and Natural (also called Social Convention), although they may differ on what each includes, and there is some overlap among them.(102) Here they each are in a little more detail for context:

    • Textual:(103) Decision based on the actual words of the written law, if the meaning of the words is unambiguous.(104) Since law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed since it was issued, then textual analysis must be done on the words as understood by the lawgiver, which for a constitution would be the understanding of the ratifying convention or, if that is unclear, of the drafters.(105)
    • Historical (Originalism):(106) Decision based less on the actual words than on the understanding revealed by analysis of the history of the drafting and ratification of the law, for constitutions and statutes, sometimes called its legislative history, and for judicial edicts, the case history.(107) A textual analysis for words whose meanings have changed therefore overlaps historical analysis.(108)
    • Functional (Structural):(109) Decision based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system.(110)
    • Doctrinal:(111) Decision based on the prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the meta-doctrine of stare decisis, which treats the principles according to which court decisions have been made as not merely advisory but as normative.(112)
    • Prudential:(113) Decision based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure.(114) One such consideration, avoidance of disturbing a stable body of practices, is also the main motivation for the doctrinal method.(115) It also includes such considerations as whether a case is “ripe” for decision, or whether lesser or administrative remedies have first been exhausted.(116)
    • Equitable:(117) Also called ethical.(118) Decision based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide.(119) Often resorted to in cases in which the facts were not adequately anticipated or provided for by the lawgivers.(120) Some scholars put various balancing tests of interests and values in the prudential category, but it works better to distinguish between prudential as balancing the interests and values of the legal system from equitable as balancing the interests and values of the parties.(121)
    • Natural (Social Convention):(122) Decision based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur.(123)

In my opinion all the historical threats to the constitution still exist today, which is why the principles previously discussed are still relevant. A modern threat to the constitution is the creation of new and unsubstantiated methods of interpretation that have no body of scholarly law to support their use. In addition, there are those in power and academia today that believe the Constitution is outdated and could be enhanced by a second Bill of Rights where the concept of “Positive Rights” is the focus.(124) Another way of understanding the concept “Positive Rights”, they are rights given to people by the state based on perceived injustices grounded in ideology. This concept is similar to the European constitution in that it empowers the state to define what the rights of the people are. Suggesting the U.S. Constitution is out of date is another way of saying we don’t believe in the Constitutional principles that restrain the prospect of governmental tyranny/coercion. I asked a few legal scholars their thoughts on this matter and here is what they said:

John Yoo – University of California Berkeley School of Law (125)

Mr. Allsup:

Thank you for your message. I agree that misinterpreting the Constitution and positive rights are a real threat to the U.S. constitutional and political order. But I think that terrorism, Cyberwarfare, and WMD are more immediate threats from abroad. The change in our constitutional order is a longer-term problem that we can cure ourselves, while foreign threats are shorter-term challenges that we must address immediately.

Best wishes,

John Yoo (126)
Emanuel S. Heller Professor of Law, University of California at Berkeley

Geoffrey Stone – University of Chicago Law School (127)

I’m not sure what you mean when you say that “constitutional misinterpretations and positive rights” are among the “highest domestic threats.” Threats in what sense? As for “reasonable expectations of privacy,” that is a judicial concept and “reasonable” means normative as well as descriptive. It is clearly for the courts to decide that, although they could give weight to legislative judgments.

Geoffrey Stone (128)                                                                                                                   Edward H. Levi Distinguished Service Professor, University of Chicago Law School

I believe those responses from two leading and distinguished legal scholars are self- explanatory. In further correspondence with Mr. Stone I conveyed my sentiments on how those threats apply to the U.S. Constitution. In an extensive email exchange he never agreed nor disagreed, but given he is the Editor-in-Chief of a twenty volume series titled “Inalienable Rights” published by Oxford University Press (129), I think he most certainly disagrees.

I view these as threats to our modern constitution because non-standard or newly manufactured methods of interpretation could derive policy counter to the principles of the Constitution. In addition, the concept of “Positive Rights” in my opinion is counter to the essence of our values, principles, and Constitution. It places an inordinate amount of power in the hands of the government, power that is taken away from the people. The implication of which is that future governmental administrations might have a different interpretation of what a “Positive Right” is and that is a direct risk to the U.S. Democracy.

In addition, if a second Bill of Rights were created, a ‘Dynamic Incorporation’ method would need to be created to interpret these parallel rules. What this means at its core is that the governance apparatus would be able to play the Constitution and second Bill of Rights off each other to derive policy that is positive for the government and not necessarily for the rights of the people. It creates a novel method for the government to have their cake and eat it too.

Those are the risks I believe that most threaten the Constitution in modern times, but since governance and rule of law are technologies, they are derived by human creativity that are built upon prior ideological phenomena. Let’s now explore where and who is advocating for positive rights and new unsubstantiated methods of interpretation in my next post.

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One Response to Part 2 – What modern threats does the U.S. Constitution face?

  1. Pingback: Thoughts – The Religion of State Power and Making Government “Simpler” | @The Heart of Big Brother

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