Constitutional Interpretation and the Role of Judges: How should judges interpret the constitution?  

Posted by J. Muneza M'vunganyi

Scholars agree that a constitution is a system which establishes the rules and principles by which an organization, or political entity, is governed. In the case of countries, this term refers specifically to a national constitution, which defines the fundamental political principles and establishes the power and duties of each government.

The creators of the American constitution made it clear that they did not want their personal intentions to control interpretation of the constitution and thus the law. That’s exactly why judges should be careful while interpreting the constitution to avoid their personal agendas or political affiliations from influencing or shadowing their judgments.
It is absolutely important that Judges be neutral and objective in order to make legitimate interpretations of the constitution. If not, we risk situations where ‘activist’ Judges like Scalia apply subjective reasoning that takes over from the objective evaluation of applicable law, in the process endorsing their political agendas. This tendency of some judges to take “a flexible view” of their power of judicial interpretation is common with right wing leaning judges who feel like they are on a moral high ground backed by a religious majority, which is very flawed and nothing short of policing the society, supposedly “to promote virtue and prevent vice".
The current composition of the Supreme Court is a testament that the appointing administration has an understanding and confidence that they will follow a definite interpretation of the constitution based on a religious underpinning or a “moral agenda”.
However if Judges are custodians of this sacred document, and are entrusted with a duty to interpret it fairly based on a principals that include; precedence, socio-economic and political implications and most importantly the natural law of fairness and justice, they are failing the very principals of justice that they claim to preserve.
Recent judicial developments have shown a tendency by judges to over reach in their interpretation of the constitution to the extent that some significant judicial turning points in the history of this country like Brown Vs Board of education, Roe Vs Wade etc, are in jeopardy of being overturned. During the confirmation hearings of Judge Alito to the supreme court, he continually alluded to the fact that he was open to the idea of revisiting such historical rulings, and knowing that he was appointed by an evidently right leaning administration-to the point that the former nominee to the post Margret Meyers was sidelined because she was seemingly less conservative than Judge Alito-makes it hard to expect any rational interpretations.
Judges like Bjork and Scalia who are proponents of the ‘originalist’ school of thought, reiterate that it is a court's task to adjudicate and not to "legislate from the bench,". They argue that judges should exercise restraint in deciding cases, emphasizing that the role of the courts is to frame "neutral principles". This theory of original intent is the view that interpretation of a written constitution should be in line with what was meant by those who drafted and ratified it. However these judges seem to ignore the fact that societies change and evolve with time and so do the needs and attitudes of people. Thus the constitution should be flexible enough to accommodate these fundamental dynamics of social change, if it is to remain credible. For example when the constitution was framed, slavery was legal and women could not vote. In Bork and Scalia’s school of thought therefore, it would mean that those two social evils would be still be condoned in today’s society because they were not addressed in the original constitution. Unfortunately these are the same judges who claim to ‘tow the moral line’ based on their moral rationale of christianity being the ‘guiding force of life’.

On the other end of the legal spectrum are legislators like Ronald Dworkin who argues that most often moral principles that people hold dear are wrong, and are based on the prevailing sentiments of a ruling majority, “even to the extent that certain crimes are acceptable if your principles are skewed enough” Dworkin, R. (1977) Taking Rights Seriously. London: Duckworth.
In order to apply these principles, judges will interpret the constitution based on a need to justify that ‘skewed law’ which in most cases will defeat the law of natural justice
On the other hand, liberal judges who are often opposed to the originalist school of thought, face the risk of being imprudent in their efforts to include their liberal social and political thoughts into constitutional interpretation.
This is viewed as the primary alternative to originalism otherwise known as the Living Constitution; the theory that the Constitution was written in flexible terms whose meaning can be dynamic and change to reflect the changes in society.
Scholars have argued that such Judge’s interpretations involve the exercise of discretion and are concerned with their far reaching consequences; mainly because its results were not envisioned by the framers of the constitution.
This is also not necessarily good for the constitution, because it may have reckless consequences or might oversimplify complex moral and socio-political questions. That said however, it should be made clear that it is not necessarily bad law, or no law, just because it violates the doctrine of strict constitutional interpretation.

However both schools of thought on constitutional interpretation share a common view that there is an authority that should govern the process and that has checks and balances to avoid interpretations based on agendas or political background. The divisions mainly relate to what exactly that authority is,the intentions of the authors, the original intentions of the authors of the constitution, or the plain meaning of the text and how one judge might chose to understand it.
Whatever the case one makes for their argument and angle of interpretation, it should be understood that the constitution is above all forms of politicking and religions and whoever is given the task of interpreting it, should do so in the ultimate name of preserving natural justice.