The Story

What Does that Really Mean: Constitutional Interpretation

Feb. 16, 2010 | By Danny Mosier, DSJ News Editor

The latest in the prestigious James Goold Cutler Lecture series took place Friday afternoon inside the Law School. Presented by Dean Davison M. Douglass of the Law School, the speaker of the lecture was Leon Meltzer Professor of Law at the University of Pennsylvania Matthew Adler. Adler, the author of several books and numerous articles, focuses his work on three areas: policy analysis, risk regulation, and constitutional theory. His lecture, entitled �"Constitutional Disagreement and Right Answers,” focused on the last of these areas and discussed the contemporary problems of what constitutes a �"correct” constitutional interpretation.

The basic puzzle in matters questioning constitutional interpretation, stated Adler, lies in how exactly one should interpret the extremely influential, yet highly contested national document. He discussed the two major opinions on how the Constitution can be correctly interpreted; the originalists, who believe one should look to the original meaning of the framers for answers, and the non-originalists, who think the framer’s intent should not be the sole deciding factor of any interpretation.

Adler stated that the major question behind the nature of constitutional interpretation was not between originalists and non-originalists, but whether there are indeed any legally correct answers for contested interpretive questions dealing with the Constitution. If such a clear-cut way of interpreting the Constitution existed, Adler stated that the currently contested question whether the ability to have an abortion is a right or not could easily be answered.

�"Let me stress that there are ongoing debates about interpretive methodology,” said Adler.

He went on to describe five major ways in which interpretations are founded. These methods included looking at original public intent, the intent of the framers (which is supported by the originalists), the meaning over time (which is supported by the group known as the traditionalists), or its current meaning. The fifth method goes beyond intents and goes straight into the moral considerations of the matter. The debates over the �"correct” method have gone on for years, with no side having any clear advantage in the legal system.

�"It is true that most judges don’t wear their interpretive hearts on their sleeves like constitutionalists do,” said Adler.

As Adler summarized, there are a plurality of methodologies with no universal support for any single one of them. Every scholar and law professional seems to advocate their preferred method as legally appropriate and the others as legally incorrect, leaving this to be a question which may never get answered.

�"I wish I had a solution to the puzzle,” said Adler. �"Unfortunately, I don’t.”

Adler continued by listing the three non-skeptical possibilities for finding correct answer in contested matters of constitutional interpretation, but concluded by stating that each contains enough problems to render them all null and void.

The first, the Natural Law approach, equates law and morality, stating that an interpretation is legally permitted only if it is morally appropriate. Adler used the example of speed limit laws to show the pitfalls of this philosophy- are there any moral explanation as to why the speed limit should be 65 miles per hour? This philosophy is also subject to the current societal codes, which can change over time. Adler used the example of interracial marriage, which was once considered by the majority of American society to be a moral wrong and is now legally permissible by the legal system, to show the flaws in this ideology.

The second method, the Rule of Recognition, uses a master meta-rule which defines common identifying tests for legal validity in the appropriate situation. The fact that the U.S. legal system has no such rule makes it difficult for this method to be used in matters of constitutional interpretation. While many have stated that the framer’s intent can be used as the underlying rule, there is no clear consensus which puts the originalists in the majority, and Adler states that this is why the Rule of Recognition cannot be used.

Adler concluded by stating the Dworkin model of Instructive Interpretation, which looks towards prior examples of legal consensus to determine what is justifiable. While Adler believes this to be the best of the three models, he stated that this model is flawed in how it leaves out current consensus and how it fails to provide a consensus when the matter is highly contested.

This left Adler to conclude that a skeptical response, which states that it is impossible for there to be a correct consensus on a matter of constitutional interpretation, is the best available response, but that it is not the one the legal community should accept. He concluded the lecture with the question he believes should be asked and which would spark a whole new series of debates and lectures.

�"Why haven’t more constitutional theorists worried more about the puzzle?” said Adler.