Why is non-interpretivism appropriate for American constitutional jurisprudence? and Why?

Question

Non-interpretivism encourages judges to use additional resources in intepreting constitutional provisions, such as history, social sciences, and moral philosophy. When compared with interpretivism;which is that judges should interpret constitutional provisions according to the text and the orginal content, what makes non-interpretivism better than interpretivism?

Answer 1

Here's an argument (in condensed form) that I often hear in defense of non-interpretivism:

Constitutions are written for two purposes. One, they are meant to "lock in" the powers of a government. Two, they are meant to provide predictability and stability in political life.

Non-interpretivism is the best means of preserving these two essential functions of written constitutions. If constitutional provisions can be "reinterpreted" to mean new things, the government is no longer effectively limited in the excercise of its authority. And if the meaning of the constitution can change at a whim, people won't know what to expect from their government from year to year.

Let me illustrate with a few examples. An "interpretivist" judge might look at early state laws and the writings of the more religious Founders and conclude that the 1st Amendment merely prohibits Congress from establishing a *particular* Christian church, and not as a prohibition of establishing *any* religion. The point of writing the amendment, which was to keep the Federal government out of religious matters, now no longer restrains the government because it has been "reinterpreted."

Or consider if judges frequently reinterpret Congress' ability to regulate the economy. For a few months they can regulate everything, then suddenly judges decide Congress may regulate only a tiny bit....it would be very difficult for businesses to operate in such an environment. Never being able to predict the rules of the game from one moment to the next makes it difficult to play the game.

Obviously, these are extreme examples but they illustrate the general ideas. I don't necessarily agree with the arguments I just offered, or think they override reasons in favor of interpretivist approaches. But I do recognize that they are powerful arguments.

Answer 2

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Why is non-interpretivism appropriate for American constitutional jurisprudence? and Why?
Non-interpretivism encourages judges to use additional resources in intepreting constitutional provisions, such as history, social sciences, and moral philosophy. When compared with interpretivism;which is that judges should interpret constitutional provisions according to the text and the orginal...

Answer 3

Sorry I'm late. But I think you have the definitions backwards.

Interpretivism is the view that laws must be evaluated in the context of the community, and according to the goals of that community. It allows for local moral and political influences, as well as application of current social and political goals.

But in reality, everything gets interpreted. That's the nature of language. The only question is, how broadly and in what ways.

Interpretivism uses history, social sciences and morality to interpret the plain text. So, you have that backwards. The differences are whether only local and rencent history and morality are being used, or whether we go back centuries to include "original intent". And I agree with the analysis of timm1776 (above) as to why that is bad.

There are three main camps for Interpretivism, one which bases the interpretation just on what is happening here and now, one that takes a global perspective, and and one that goes with the original intent concept.

Globalism supports the idea that other time and other cultures can provide an insight into possible interpretations. While foreign or historical perspectives may not be binding, those may still serve a valid purpose of brainstorming alternatives. And provide for a broader context than interpreting strictly relative to the local community. But I also agree that taking too broad a picture is not healthy, because it leads judges to stray too far from the text itself. Again, great analysis by timm1776 above.

Originalism, the idea that laws should be interpreted according to their original intent, is also in opposition to interpretivism (not part of it) where the laws did not arise in the local community. So, when interpreting constitutional provision from 200+ years ago under an originalist model, that doesn't mean they are applicable to the local community, which interpretivism demands.

Originalism interprets the literal text, but as it applied at the time it was written, to provide a perspective on the intent that should be applied now. In other words, if something was originally disliked, and is still disliked, then the original goals and modern goals are the same, and the original intent is still applicable in modern context. The problem, of course, is trying to guess what the original intent was, and whether that intent is applicable today.

The fourth major alternative is a strict constructionist (literalist) approach. This model takes the literal text, and applies it in a current context. This actually requires the least interpretation of any of the models, because it relies only on the plain text, and the meaning those words currently have. No second-guessing what "speech" and "press" really meant 230 years ago -- they mean "personal communication" and "mass media communication".

Yes, that's an interpretation, but only based on the current reality in which the laws are being enforced. The difference is that literalism doesn't seek the use the laws to achieve social or political goals. It treats the law as abstract and insular, unaffected by social or political preferences. So, of all the models, literalism is the furthest from interpretivism in its goals. Interpretivism seeks to interpret the text to serve a purpose, while literalism seeks the honor the text for what is says.

Personally, I'm a literalist in most areas, except for civil rights, in which case I would likely be considered a globalist with the specific goal of maximum personal liberties for all. But that's also because of what the plain text of the 9th Amendment says.

Answer 4

I love your question. No doubt there are people reading this questions and proclaiming how different violating the sanctity of marriage for a divorce is from gay marriage violating the sanctity of marriage... How about people who are like me though.. I am an Atheist I am married to a woman whom I love very much, have no interest in ever divorcing. We have been together for only 5 years now, but our relationship is stronger today then 4 years ago when we got engaged... However, does my marriage also not defile the sanctity of marriage.. I mean I am not married because of god and my wife and I have nothing to do with the sanctity of marriage but our marriage is stronger then most people I know, or have ever seen... Should Christians also lobby to stop Atheists and people of other religions from getting married?

Answer 5

Interpretivism Definition

Answer 6

As you described it, I would say that it is not appropriate. Judges should consider the original intent of the constitution and attempt to maintain that. The concern that I have with "social sciences" and "moral philosophy" is that they are subject to the whims of the times. Sometimes, things do need to be changed (i.e. slavery, women's vote), but I think that judges could use non-interpretivism as an excuse to legislate from the bench for short term solutions.

Answer 7

Judicial Interpretivism

Answer 8

1

Answer 9

Where is Coragryph when we need him? He would have an intelligent answer to this question.

Answer 10

Sorry but stupid