Ask Civics 101: What Is The Difference Between Constructionist, Originalist and Liberal Justices? | New Hampshire Public Radio

Ask Civics 101: What Is The Difference Between Constructionist, Originalist and Liberal Justices?

Nov 16, 2020

Today's Ask Civics 101 question: What’s the difference between a justice who is a strict textualist/strict constructionist and the more liberal justices?

Read on, or listen to this short podcast episode for the answer.

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A constructionist is someone who approaches the words of the Constitution hyper-literally, without considering the statute itself or how that word is approached in the legal world.

Amy Steigerwalt of Georgia State University explains, "So that one is this idea that you read the word, that's it, you're done. And it sort of creates, in the words of Justice Scalia, a judicial straitjacket because that's not how the world works. "

Amy says that most political scientists disapprove of the term constructionist. They find it confusing and believe it misses the mark in describing judicial interpretation.

Textualism, on the other hand, very much exists on the bench.

"A textualist looks at the words that were used in the context of the statute," Amy says.

Take that one step further, and you have an originalist.

"An originalist does the same thing as a textualist, but wants to know what the words meant at the time the statute or constitutional provision was passed."

But even within originalism, there are some differences.

"Where there then becomes some debate," Amy continues, "even among more conservative constitutional scholars, is whether or not you should define those words using their meaning at the time that the statute or the constitutional provision was passed. That's the notion of originalism."

"Or if you interpret them using perhaps the public meaning at the time they were passed, that's kind of a broader interpretation of originalism, sort of the idea. It's not just who wrote it, but also those who might have been then reading the Constitution when it was published in the newspapers and learning about it and how they might have thought about it."

Many think of originalist and textualist as "conservative" interpretations, or interpretive tactics employed by conservative justices. They stand in fairly stark contrast to liberal justices when it comes to interpreting the Constitution.

"A lot of the liberal justices would argue that yes, it was written back then, but it was written broadly, it was written in a particular time," says Amy.

"But we're now existing in, in many ways a different time. And so the words in order for it to still be useful, to not be that sort of straitjacket that Justice Scalia had talked about, we need to recognize how the meaning of the words have changed. And sometimes if we were to, for example, hold to the intent of those who wrote a provision, it would actually lead us to some weird outcomes."

We can, for example, look at the 1964 Civil Rights Act. It prohibits discrimination based on race and sex. Conservative lawmakers were the ones to include “and sex” in the bill, assuming that it would never pass with that provision.

Their intent was to kill the bill by throwing sex into the mix. Of course, the bill did pass. Today, if you consider the intent of the people who wrote that act,  you’d also undermine the legislative force of the act. 

As far as intent goes, Amy reminds that even the framers of the Constitution were not unanimous on that front.

"Even at the time they enacted it, they were all debating over what exactly it meant. So we had the Federalist Papers and the anti-Federalist and they went back and forth in the newspapers at the time arguing, 'if you say X, it means this. And the other side would say, no, no, no, that's not what it means. It means this.  There was a lot of angst about what these different provisions."

That angst hasn't dissipated so much as continued on in the heads and hearts of our Supreme Court justices.

"Because the reality," Amy says, "is the Constitution is incredibly vague and hard to understand. I mean, what does equal protection under the laws actually mean? No one really knows. We have to try to piece it together. And so it's trying to figure out what are the sort of tools and standards that we're going to use to guide our decision so that we can try to have some consistency.

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