Brief: Justification and Weaknesses of the Non-Interpretive Model The question of Constitutional interpretation still has yet to be resolved. Should only the explicit commands of our nation’s Founding Fathers be referenced in courts of law, or can it be justified that an outside body should extrapolate from the specific text of the Constitution to define and defend additional fundamental rights? Further, if this body, namely the Supreme Court, bases its decisions of constitutional relevance not wholly on exact interpretation, then regardless of reason, are they wholly illegitimate? The non-interpretive model allows the Court to interpret beyond the exact wording of the Constitution to define and protect the values of a society. The question of how the non-interpretative model can be justified must be answered. Despite much remaining confusion between the two models, it is clear that history has chosen the non-interpretative model without which many of the defining points in our nation’s history would be unjustified.
The overwhelming strength of the non-interpretive model is that it has allowed for many fundamental decisions that have served to protect the natural rights of the members of this society. If on the other hand the interpretive model is to be accepted, a significant number of decisions must be revoked. Briefly, the majority of the due process clause is no longer justified. Fair criminal and civil procedures must be dismantled since they have no specific textual reference in the Constitution.
Freedom of speech, religion, and property rights are all called in question. Also affected is the legitimacy of franchise and legislative apportionment bodies of doctrine. The equal protection clause of the Constitution when read literally outlines the defense of some forms of racial discrimination. However, it does not immediately guarantee the right to vote, eligibility for office, or the right to serve on a jury.
Additionally, the clause does not suggest that equal-facility segregation is not to be allowed. Finally, the freedom from cruel and unusual punishments as outlined in the eighth amendment loses its flexibility. In this manner, a prima facie argument against the interpretive model is evident. Without the ability to move beyond the specific wording, the Court loses its authority to protect what society values as basic human rights. A fundamental question relevant to this debate is whether or not values within our society are time-enduring or changing.
When the Supreme Court makes a controversial decision, does it use the text of the Constitution to legitimize principles of natural law, social norms and arrangements? Or, is it acting as an interpreter of slowly changing values and imposing its views on society through its decisions? The Constitution is not a stagnant document; it is very much alive and changing with the times. Critics argue that the amendment process was created to allow change and that the role of the Judiciary does not include the power to change stated commands in addition to that of enforcing them. However, in many cases, the amendment process is inadequate for clarification of issues of human rights. A great virtue of the non-interpretive model is that the Court has the power to strike down unconstitutional legislation that allows for the Court to preserve the rights of the people.
Non-interpretation then requires the application of understood codes, yet the decision-making process is far from mechanical. Critics contest that the Court should not have the ability to interpret societal values in a given period of time. However, as has been shown, history has upheld this tradition. A number of questions now arise. Is it practically wise to place the responsibility to define and protect human rights in the hands of Supreme Court Justices? The answer lies in one’s interpretation of history. While it is true that the Court has made decisions that reflect its own biases and interests, it can be shown that the Court has also consistently acted to secure the rights of citizens and to limit federal and state powers.
Following, is the definition and enforcement of human rights a judicial task? The adjudication of the Supreme Court over issues of human rights as opposed to this power residing in other branches of government must be answered. While there is no direct statement regarding judicial review in the Constitution, Marbury v. Madison is referenced here as the greatest of all cases justifying this judicial power. Thus arises the penultimate question of the authority of the Supreme Court. Constitutional adjudication was allowed for implicitly by the Founding Fathers. Only some of the principles of higher law were written down in the original document; however, the distinction between those laws protecting natural rights and positive law was a well-understood one.
The ninth amendment allowing for due and proper legislation is the expression of the existence of further principles of higher law not specifically written into the Constitution. The Marshall Court is a prime example of the manner by which the Supreme Court would act as the enforcer of both written and unwritten natural rights. Through the mid-nineteenth century unwritten constitutional law was referenced during many controversial debates, notably allowing for the protection of contracts, the institution of labor regulation, and the restraining of taxation. Continuing through the twentieth century, unwritten rights were upheld allowing for the advancement of laissez-faire capitalism and restraining the powers of state governments against impinging on the natural rights of its citizens.
Finally, through the most recent decades, the non-interpretive model has allowed for the right to privacy, freedom of expression, women’s suffrage, de-segregation of schools, and general equality for all citizens under law. Hence, the Constitution itself is inadequate if read in the interpretative model, for it says nothing of many of the rights American society values as indispensable. There exists a long-standing tradition of belief in natural rights within American civilization. The Constitution textually defined only a portion of these and left the outline of those remaining to be defined and protected by an undeclared institution. The court filled this role through the function of judicial review and the power vested by the 14th amendment.
The Founding Fathers had no intention of declaring every human right; rather, they created a system by which future generations could modify existing legislation in the context of contemporary codes. Since that time, a vast number of crucial cases in U.S. history have required extrapolation beyond the exact written words of the Constitution. Without which the rights of the citizens of this society would be far less secure and well defined.
Hence, one recognizes the superiority of the non-interpretive model. There are several weaknesses to the non-interpretative model of Constitutional review. One such weakness deals not with the content of declared rights but with the manner by which they come about. Despite that the equal protection doctrine, the right to privacy, and freedom of association are good and may be based on reason, they do not stem from interpretation of the written Constitution. Therefore, critics argue that they are wholly illegitimate.
The Court now becomes an arbiter of fundamental value choices, and if these are defined by the Constitution, the Court need not intervene. Yet, it matters less how these rights come about if the majority of society recognizes them as fundamental to a functioning democracy. Additionally, one must return to the recognition that values change within a society and the Constitution cannot fully allow for all rights needed in contemporary society. Secondly, critics argue that Marbury v.
Madison is a weak grounds for the non-interpretive model. It is said that this decision revolved around a highly technical provision of the Constitution. Indeed, there is merit to this criticism, for the logic used by Marshall does not wholly justify the use of this case as the deciding factor in the outcome of Supreme Court cases involving constitutional interpretation. However, the 14th amendment and the due process clause further allow for such interpretation. Thirdly and most importantly, advocates of the interpretive model argue that the Supreme Court is not an unbiased institution and should not have the power to define the present values of American society. The outcomes of many Supreme Court cases have exhibited the biases of the judges deciding the case.
Critics then ask the question, if the Court is also vulnerable to opinions and biases, why ought the Court to have the power to declare the limits of natural rights and set down national ideals? They argue that there is little reason why the legislative body should have this power. This is perhaps the most difficult of criticisms to the non-interpretive model. Because the Court contends with this difficulty in justification of many decisions, it has used poor legal history and unclear use of constitutional language to support cases that could be justified just as well with current moral and political notions. While this tendency of the Court is deplorable, the truth is inescapable that the cases allowing for many of our most basic rights cannot be justified simply by reference to the Constitution. Hence, the Court has invoked the generality of the Constitution to define and defend vested rights and general principles of democratic society. To conclude, without the ability to move beyond the explicit text of the Constitution, a great number of crucial decisions in U.S.
history must be overturned. The simple fact is that the interpretive model cannot allow for the justification of many of our most sacred rights. While criticisms as to the justification of the power of the Court to discern the values of contemporary society are legitimate, history as well as the citizens of this society have long declared the non-interpretive model superior.