It’s Not in the Constitution!

Republicans like to note that there is nothing in the U.S. Constitution which expressly grants U.S. citizens such things as a right to privacy, a right to healthcare, or a “freedom from religion.” This is true, if your interpretation of the U.S. Constitution is limited precisely and exclusively to the very words which appear in it. Of course, such a literal interpretation of the U.S. Constitution would also preclude many ideas which are dear to Republicans:

• “God,” “Jesus,” “Christ,” “Christianity.” Not in the Constitution. In fact, the First Amendment to the Constitution specifically states that “Congress shall make no law respecting an establishment of religion.” Let me repeat that for Fox viewers: No Law Respecting an Establishment of Religion.

• “Zygote,” “Fetus.” Nowhere in the Constitution. Not protected. The Constitution does, on the other hand, confer rights upon persons, citizens, and specifically “natural born citizens.” But it makes no specific mention of the rights of fertilized human eggs, so there is no literal basis in the Constitution to claim that they have rights, too.

• “Corporation.” The word does not appear in the Constitution. As stated previously, the Constitution only talks about persons, citizens, and specifically “natural born citizens.” That being so, there is no literal basis in the Constitution for claiming that corporations are entitled to the same rights as “persons” and “citizens.”
  

• “Flat tax.” Not mentioned anywhere in the Constitution. It lacks Constitutional basis. It goes “beyond the Constitution” as much as “progressive taxation.”

• “Balanced budget.” Does not appear in the Constitution. Probably because wars tend to create deficits.

• “Racial Profiling.” Not in the Constitution. The Constitution originally excluded “Indians not taxed” from the census for representation, but that provision was removed long ago and appears to have been based on a factor other than their race or ethnicity.* If you institute racial or ethnic profiling, you are going “outside” the Constitution.

You see, Republicans often squeal that Democrats are enacting programs that go beyond the scope of the Constitution – and then they seek to do likewise, to satisfy their constituents.

*This entry has been corrected to reflect insights provided by Dante Atkins

Sources: U.S. Constitution, Bill of Rights

Constitutional Purposivism

About a month ago, NPR [National Public Radio] reported about the debate over interpretation of the U.S. constitution. The report noted that conservative jurists, particularly Supreme Court Justice Antonin Scalia, are advocates of “constitutional originalism,” defined as “adherence to the ‘original intent’ of the creators of the Constitution.” We’re talking about strict interpretation of the document. Literalism. Only what is said is covered. If it is not there, it is not covered.

The NPR report suggested that U.S. liberals did not have a coherent counter-theory of constitutional interpretation. My research on the Internet suggests that there is and has been a popular liberal counter-theory: constitutional purposivism. According to “purposivism”, the constitution (and other laws) should be interpreted “in light of the purpose behind the legislation.”

Sometimes our Constitution sets highly specific standards, such as when it says the President must be at least 35 years of age. But elsewhere it uses language which is open to interpretation, such as in the Fourth Amendment, where it says that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

An “originalist” would argue that there is nothing explicitly written in the Fourth Amendment about “individual privacy” or “abortion rights”, so these concepts have no basis for protection under the U.S. Constitution. The stated purposes of the Constitution are irrelevant. The modern consequences of such an interpretation are irrelevant.

A “purposivist” judge, on the other hand, would consider the stated or implied purpose when interpreting the Constitution. There are modern circumstances to be considered, broad language in the source document, and a question about the consequences of applying the law in a literalist fashion: if you applied the law literally, how would the results compare with the intended purpose of the law? The Constitution was written for a purpose. The purpose therefore matters when you interpret it.

You will have guessed that I am inclined toward purposivism. I believe the Constitution should be interpreted with an eye toward the purposes stated in its Preamble. It clearly states that its purpose is to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” I think it is logical to conclude that any interpretation of the Constitution should consider whether the interpretation advances or defeats its stated purposes. Considering the stated purposes of the Constitution, the Fourth Amendment can be read as generally protecting citizens from unreasonable government intrusion into their private lives.

This argument reminds me of Jesus’s reported arguments with the Pharisees [Matthew 12]. The Pharisees accused Jesus of “working” on the Sabbath, which was against the law, because it was the Sabbath and he was busy healing people. Jesus reportedly replied that “it is lawful to do good on the Sabbath.” In my opinion, Jesus was being a purposivist.