Responsive interpretation

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Responsive interpretation is the idea that, when interpreting the Constitution, judges should seek reference to the meaning of the document in light of society's current ethos or idea of morality. The idea has its background in McCulloch v. Maryland, a landmark early Supreme Court case where Justice Marshall stated, "let us remember that it is a Constitution that we are expounding," arguing that the Constitution must be ensured to stand the test of time.[1]

Constitutional Faith[edit]

Sanford Levinson is a prominent responsive jurist and academician. In his book, Constitutional Faith, Levinson argues that the Constitution is a civil religion, which, by virtue of precommitment to certain enumerated values at the founding of the nation, obviates the need for morality as a guideline for policy, since the document contains the only morality valid & agreed-upon for lawmaking. Hence, the Constitution supersedes positivist moral norms.

However, the foundational morality of the nation is somewhat... wanting. Levinson notes that the founders themselves contained many moral defects which society has either amended[2] or abrogated in foundational caselaw.[3] Levinson believes that the only way to grapple with the moral dilemma posed by a flawed directional document is a doctrine of "generosity" — that is, read the Constitution where possible to vitiate moral defects. This is one theory of responsive interpretation.[4]

Flaws in textualism and originalism[edit]

Opponents of responsive interpretation argue that it is far too subjective, and that the only way to remain objective (the standard to which all judges must aspire) is to remain faithful to only "plain meaning," or to remain faithful to the original intent of the Constitution or its Amendments. The baseline of this theory is that original intent is objectively knowable, verifiable, and plain to any interpreter.

The problem with originalism, responsive jurists counter, is that original intent is no such thing. Balkin argues that, aside from being a betrayal of morality, scrutinizing original intent does not yield easy, objective answers. Instead, a jurist using an originalist interpretation must choose which historical narrative to believe, and therefore chooses which history is "original" enough.[5] As a result, originalist interpretation is just as subjective as responsive interpretation, but has the added drawback of being morally bankrupt (as Levinson argues). Several cases highlight the failure of objective originalism.[6] This debate is far from closed, though, and remains an essential question in American law.

Example cases[edit]

Justice Brennan strongly advocated responsive interpretation of the Constitution to solve problems such as racism inherent in society, and remedy other social defects.[7]

References[edit]

  1. McCulloch v. Maryland, 17 U.S. 316 (1819).
  2. See Fourteenth Amendment.
  3. Loving v. Virginia, 388 U.S. 1 (1967).
  4. Sanford Levinson, Constitutional Faith.
  5. Balkin, Tradition & Betrayal.
  6. Lawrence v. Texas, 388 U.S. 1 (1967), (finding no historical, legal animus against homosexuality), but cf. Bowers v. Hardwick, 478 U.S. 186 (1986), (disagreeing on the same issue).
  7. See, e.g., U.S. v. Weber, where Brennan argued for an expansive interpretation of Title VII based on its perceived societal need.
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Interpretation: Originalism - Textualism - Responsive interpretation Modes of review: Rational basis - Intermediate scrutiny - Strict scrutiny
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