Interpreting And Applying Laws: A Guide

Interpreting the law is a contentious issue that involves determining the intended meaning of a written document, such as a constitution, statute, contract, deed, or will. The interpretation of written documents is fundamental to the process and practice of law. There are several theories of legal interpretation, including textualism, originalism, intentionalism, and purposivism. Interpretations can be literal, rational, or mixed. The former is when the writer's intention is collected from their words alone, while the latter occurs when the writer's words do not express their intention and conjecture is needed to determine their intent.

In the US, the debate around how the Supreme Court interprets the Constitution has been ongoing since the 1960s. Critics of the Warren Court charged that the Court had usurped the law-making function by liberally interpreting constitutional provisions. This led to the philosophy of original intent, which calls on the Supreme Court and other judges to seek the plain meaning of the Constitution and, if that is lacking, to determine the original intentions of the Framers. Opponents of this philosophy argue that discerning the intent of the Framers is impossible on many issues and that, even if it were possible, it should not govern contemporary decision-making on constitutional issues.

Judicial interpretation

In some cases, legal interpretation may be based on a literal reading of a document. For example, if a will names someone's wife as their personal representative, their intent can be determined from the specific language used. In other cases, the intended meaning of the words in a document may be obscure, and conjecture may be needed to determine the sense in which they have been used. This is called mixed interpretation.

When interpreting a statute, judges are guided by rules of statutory construction. They first attempt to find the "plain meaning" of a law, based on the words of the statute. If the statute is unclear, extrinsic evidence such as legislative history may be used to interpret what was meant.

At the constitutional level, there is concern over whether courts apply strict or liberal methods of interpretation. Critics of the US Supreme Court have charged that the Court has usurped the lawmaking function by liberally interpreting constitutional provisions. This has led to the philosophy of "original intent", which calls on the Supreme Court and other judges to seek the plain meaning of the Constitution and, if that is lacking, to determine the original intentions of its framers.

Opponents of original intent jurisprudence argue that discerning the framers' intent is impossible on many issues. They believe that the Constitution is a living document that should be interpreted according to the times, allowing justices to read it as a dynamic document with the assistance of contemporary values.

Strict constructionism

The term "strict constructionism" has been criticised as misleading or meaningless, as few judges self-identify as strict constructionists due to the narrow meaning of the term. Supreme Court Justice Antonin Scalia, who has been described as the justice most associated with the term, rejected strict constructionism, calling it "a degraded form of textualism".

Separation of powers

The separation of powers is a doctrine of constitutional law that divides the US government into three branches: the executive, the legislative, and the judicial. Each branch has distinct and separate powers and responsibilities, designed to prevent any one branch from taking over another's duties and to safeguard against unequal control over the government.

The legislative branch, or Congress, is responsible for creating laws and statutes. The executive branch, led by the President, enforces the laws made by the legislature. The judicial branch, headed by the Supreme Court, exercises judicial review over the actions of the other two branches. This system of checks and balances ensures that no single branch can dominate and that the government remains accountable to the people.

The separation of powers is intended to protect individual liberty by preventing the concentration of power in any one branch. Each branch has the ability to check the others, thus creating a system of accountability and preventing abuses of power. For example, the legislative branch creates laws, but the executive branch can veto them, and the judicial branch can review their constitutionality.

The US Constitution grants each branch specific powers to check the expansion or abuse of power by the others. These structural provisions are often referred to as the "backbone" of the separation of powers and are essential for securing individual rights and freedoms. They provide a framework that ensures certain government actions require the involvement of multiple branches, making it more difficult for coercive power to be employed against citizens.

The separation of powers also encourages compromise and consensus in lawmaking. For a law to be passed, it must go through a process that includes both chambers of Congress, with different representatives and senators, each with their own constituencies and terms, as well as presidential assent or a supermajority override. This complex process helps ensure that laws are carefully considered and benefit from a range of perspectives, making them less likely to be abusive or unpopular.

The framers of the Constitution expected that members of each branch would be ambitious and would use that ambition to check dangerous or unpopular ambition in other branches. As James Madison wrote in Federalist 51, "Ambition must be made to counteract ambition." This system of checks and balances is designed to protect citizens' liberties and ensure that the government remains accountable to the people.

Original intent jurisprudence

Interpreting and applying laws is a complex and nuanced process that involves examining the text, understanding the context, and considering various interpretive theories. One such theory is "original intent jurisprudence", also known as "originalism".

Proponents of original intent jurisprudence argue that it helps restrain judicial activism and prevents judges from imposing their own values during interpretation. They believe that by adhering to the original understanding, the interpretation process becomes more objective and constrained. Jurist Robert Bork, for example, proposed that judges should "take from the document...specific values that the text or history show the framers actually intended, which are capable of being translated into principled rules".

However, original intent jurisprudence is not without its challenges and critics. One difficulty lies in ascertaining the framers' intentions, as these are not always clear or easily identifiable. James Madison, one of the drafters of the US Constitution, believed that future interpretations should be based on the intentions of the people who ratified the Constitution through their state representatives, rather than solely on the framers' intentions. Alexander Hamilton, on the other hand, argued that the text of the Constitution should speak for itself, without needing to refer to the framers' intent.

Another critique of original intent jurisprudence is the concept of the "Living Constitution", which asserts that a constitution should evolve and be interpreted within the context of the present. This view is particularly prominent among liberal members of the legal academy, who have criticised originalism for being impractical and overly rigid. They argue that historical changes and societal advancements since the time of a document's adoption can render originalism inadequate or inappropriate in certain areas, such as free speech, freedom of religion, federalism, and gender discrimination.

Despite these criticisms, originalism has had a significant influence on American legal culture and academia. It gained mainstream acceptance by 2020 and has been endorsed by several conservative justices of the Supreme Court, including Antonin Scalia, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch.

Living document interpretation

The idea of a living document is that it is a document that is continually edited and updated. It is also known as an evergreen or dynamic document. A living document may or may not have a framework for updates, and without proper context, it can change away from its original purpose through multiple uncontrolled edits. However, a living document can also evolve through successive updates, be expanded as needed, and serve a different purpose over time.

In legal philosophy, the concept of a living document takes on a different meaning. When applied to a living constitution, it refers to the philosophy of updating the legal interpretation of the document as an activity separate from amending, changing, or updating the document itself. This is known as "living constitution" or "loose constructionism". The opposing view is "originalism", which holds that the original intent or meaning of the writers of a document should guide its interpretation.

The "living document" interpretation of a constitution asserts that it is a document that evolves, changes over time, and adapts to new circumstances, without being formally amended. Supporters of this interpretation argue that it is impossible for a constitution to remain static as society is constantly changing and evolving. For example, technology, the economy, and social mores have changed in ways that were unimaginable when the US Constitution was first drafted. Therefore, it is only natural that the interpretation of the constitution also changes to accommodate these developments.

Proponents of the living document interpretation of the constitution argue that it was written with broad and flexible terms to create a dynamic, "living" document that could be moulded to fit the needs of the time. They believe that interpreting the constitution in accordance with its original meaning would sometimes be unacceptable as a policy matter, and so an evolving interpretation is necessary.

On the other hand, critics of the living document interpretation argue that it undermines democracy by allowing judges to change the constitution's meaning. They believe that legislative action better represents the will of the people in a constitutional republic, as individuals can vote for representatives in Congress who will reflect their views. Critics also argue that a living constitution is a manipulable constitution, as it is changed according to the ideas of those in power at a particular time.

The debate over the living document interpretation of a constitution remains unresolved, with valid arguments on both sides.

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