Interpreting the Constitution and Voting for President

by Ronald J. Rychlak - August 13, 2008

Reprinted with permission.

In back-to-back days of June this year, the U.S. Supreme Court came down with opinions in two different cases that illustrate very different judicial philosophies. The cases themselves are unrelated, and they are generally seen as coming down on different sides of the political spectrum, but together they provide a good lesson about constitutional interpretations.

The first case, Kennedy v. Louisiana, involved a sentencing law from that state. Back in 1977, the Court ruled that it was unconstitutional to impose the death penalty on someone convicted of raping an adult woman, stating that such punishment was disproportional to the severity of the crime. States were at least arguably, however, still free to impose the death penalty in the case of a child rapist.

Patrick Kennedy was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter. Her injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Kennedy's conviction and rejected his challenge to the constitutionality of his sentence. The Supreme Court overturned the sentence, holding that the death penalty was unconstitutional when imposed upon a child rapist.

In reaching this decision, the Court asked the question whether the death penalty was so disproportionate as to amount to cruel and unusual punishment in violation of the Eighth Amendment. The Court decided that issue based upon "the evolving standards of decency that mark the progress of a maturing society."

Justice Kennedy (no relation to the defendant) was the swing vote in this 5-4 decision. He said the majority reached its conclusion based on "our own independent judgment" about the implications of extending the death penalty to child rape as well as on the fact that the great majority of states have declined to do so. Justice Kennedy said there was thus a national consensus against applying the death penalty is such cases (though the New York Times pointed out that the Court seems to have been unaware of a provision in the Uniform Code of Military Justice, which Congress inserted in 2006).

That leads us to the other important case, District of Columbia v. Heller, which was released one day after Kennedy v. Louisiana. In Heller, the Supreme Court struck down Washington, D.C.'s gun ban. Washington had the nation's strictest gun laws, but the Bill of Rights provides:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

For more than two centuries, the meaning of the first clause – about the militia – has been unclear. Did that condition the right? No other right in the Bill of Rights has such a condition. On the other hand, the structure of the Constitution suggests that this, like all the other rights, is a personal right.

In District of Columbia v. Heller, the Supreme Court ruled that the right was personal: American citizens have the right to keep and bear arms and it does not depend upon state militias. To reach this decision, the Court looked to the meaning of the words that were used in the Second Amendment, not to modern attitudes and concerns about society as the justices had done in Kennedy v. Louisiana.

So here we have two cases, decided one day apart, with very different philosophical underpinnings. The death penalty decision was based on something akin to the idea of a "living Constitution." Such a philosophy takes modern attitudes into consideration because provisions written in the late 1700s might not be fully applicable in the 21st century.

The gun control case is based on something closer to an "original intent" philosophy. (Justice Scalia, who wrote that opinion, prefers to say that he relies on the "text" rather than the "intent.") This theory says that the Constitution should be interpreted as it was understood when the provision in question was written and ratified – the words don't change. This theory grounds the Supreme Court in a written text, keeping at least one branch of government from flowing with the current of popular culture.

These different constitutional theories can lead to very different results. In general, the "living Constitution" test gives judges great discretion to fashion results and set policies. Critics would say that this theory lets judges amend the Constitution without going through the amendment process. Supporters of the living Constitution will point out that it gave us Brown v. Board of Education, whereas "original intent" gave us "separate but equal."

On the other hand, the original intent theory keeps judges closer to the governmental structure set forth in our Constitution, preserving different roles for each branch of government. This lets representative branches (like Congress) set policy and makes judges interpret the law rather than write it. This theory would never have resulted in the invented right to abortion, and there would be no argument about a constitutional right to euthanasia, suicide, gay marriage, etc.

This fall, we will vote for president. One can never be certain how judges will act once they are put on the bench (reliable "liberal" Supreme Court justices Stevens and Souter were nominated by Republican presidents), but Barack Obama is likely to nominate judges who believe in that living Constitution. John McCain will likely nominate judges with an original intent/textual theory. With a Supreme Court that is so evenly divided, that may well be the most important difference between the candidates.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).