There is a good deal of mention of the Constitution on social media these days; frequently, in short, declarative sentences that express with certainty what the document means. Oftentimes these comments are directed at the Supreme Court, accusing a justice or justices of willfully violating the obligation to impartially interpret and administer the law. Although both liberals and conservatives have engaged in this sport, conservatives do it a lot more, in part because of a legal theory called “Textualism,” which asserts that there is but one legitimate explanation of what the men who drafted the Constitution intended.

Textualism was perhaps best described by former Justice Antonin Scalia in a 1996 speech at Catholic University in Washington, DC: “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words,” which sounds benign enough. While postulating, however, that a body of language can be objectively interpreted may be an interesting philosophical construct, it does not apply to the United States Constitution.

The Constitution was, in fact, written intentionally to defy objective interpretation, to be sufficiently vague as to allow future (Federalist) leaders to shape the government in a manner that dealt effectively with changing conditions. For example, in Article I, Section 8, which delineates the explicit powers of Congress, the final clause grants the right “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  

This appears to be extremely broad, allowing Congress to do pretty much anything it wants without defining any limits. Yet the framers must have intended some limits.  But what are they? How can anyone discern a “fairly understood meaning,” an objective meaning, of “necessary and proper”? As a mundane but revealing example, what would be “necessary and proper” to make young children go to bed? Bribe them? Yell? Offer to read a story? Let them stay up until they fell asleep on the couch? Punish them? Each of these would be considered necessary and proper in different households.  

Equally true is that the laws Congress deems necessary and proper will vary greatly depending on the make-up of the body. In 1882, for example, Congress considered it necessary and proper to pass a law barring Chinese immigrants from entering the United States. No such law, at least one hopes, would pass either house today.  (Executive orders, alas, are a different story.)

On the issue of Constitutional vagueness, particularly germane is Article III, which defines the federal judiciary about as vaguely as the framers could manage. They called simply for a “supreme court” of indeterminate size, and allowed for “such inferior Courts as Congress may from time to time ordain and establish.” They had no choice. The notion of a national judiciary was extremely unpopular in 1787, and detailing such a system might well have doomed ratification. 

Each state already had a functioning legal apparatus whose power and responsibility would necessarily be diminished as those of a national judiciary were enhanced.  Moreover, state courts were already widely viewed as tools of the rich, the instrument by which creditors enforced their claims on debtors, often struggling farmers.  Placing a high court in the national capital or lower courts in state population centers, where they were likely to sit, would further disenfranchise and disillusion the common man.  

Federal courts offered other troubling scenarios. Most Americans identified with their states more than the national government, so an individual appearing before a tribunal that might not contain a single member from his — it would almost never be her — own state was akin to standing in judgment before foreigners. 

States were leery of a federal judiciary as well. South Carolinians and Virginians feared the rights of slaveholders would be undercut, while New Englanders opposed any limits on rights of commerce. Add in the projected cost of a federal court system to a virtually bankrupt nation, and it is not difficult to understand why the delegates in Philadelphia were inclined to tread lightly. 

One power that most delegates most definitely did not wish to grant national courts was the ability to overturn an act of Congress and declare a law “unconstitutional.” As Justice Scalia observed:

“The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the Congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn’t say that anywhere. We made it up.” 

But, he concluded, “We made it up very sensibly, because what we said was, ‘Look, a Constitution is a law, it’s a sort of super-law…and what the law means is the job of the courts.’”

But is it? The Constitution is, after all, not only America’s supreme legal instrument, but also its preeminent political document. It is used not only to determine questions of justice, but also of power, and there is no greater power the Court has claimed for itself than the ability to rule on the constitutionality of legislation Congress has passed and the president has signed.

That power was acquired in 1803 by John Marshall in Marbury v. Madison, the leading case in every Constitutional Law textbook. In order to “make the court supreme,” Marshall was forced to sidestep his own principles. He claimed to be devoted to the great English legal theorist, William Blackstone, but Blackstone’s view of judicial review does not square at all with Marshall’s — or Scalia’s.

“If parliament will positively enact an unreasonable thing,” Blackstone wrote, “there is no power in the ordinary forms of the constitution vested with authority to control it.  The judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive to all government.” 

Thus, to Blackstone, separation of powers, the ultimate guarantor of liberty, demanded that the courts have no power to overturn legislative acts. Nonetheless, with the Marbury decision, the Supreme Court successfully seized for itself the right to inject itself into the political process. No philosophic construct or assertion of objectivity will change that.

Once objectivity is removed from Constitutional analysis, the attacks on the Supreme Court from both the left and the right come into focus. Liberals, for example, are furious with Citizens United v. Federal Election Commission for granting First Amendment rights to corporations, while conservatives loath Roe v. Wade, which asserts a “right of privacy” that appears nowhere in the Constitution.  

In fact, both sides are correct. The Constitution mandates neither of these rights.

What the Constitution does require in its magnificent and challenging vagueness is that We The People do not hide behind its language, but rather consider the many issues that come before us on their merits and decide intelligently the manner in which we choose to be governed. That is the philosophical construct that the framers intended.