Jurist, November 2010
2 Pages Posted: 6 Dec 2010
Date Written: November 18, 2010
Here is a hard truth that many know, but few outside of the legal profession truly appreciate: personal preferences do not dictate constitutional meaning. Of course, there are substantial disagreements among judges over how best to interpret the Constitution, but these disagreements are primarily about process. Instead of arguing about which outcomes are more or less politically desirable, judges debate the analytical methods and types of evidence that should be used to derive meaning from the Constitution's provisions. And although some believe that the debate over methodology is merely a proxy for the debate over judicial outcomes, the decisions of our federal judiciary, viewed as a whole, suggest otherwise.
However, notwithstanding the legitimate methodological disagreements that exist in the judiciary, many of our politicians and talk show hosts often eschew analytical nuance for the "I believe it, so therefore it must be true" approach, treating constitutional interpretation as purely a matter of personal opinion. Trading discussion of interpretive methodology for platitudes such as "judicial activism" or "undemocratic," prominent commentators frequently seek justification for their own preferences rather than providing any substantive constitutional commentary. Not only is it dishonest, but it further entrenches the ideological divide in America and impedes an important discussion about how our Constitution should be interpreted.
Suggested Citation: Suggested Citation
Serota, Michael, Civic Education and Popular Constitutional Interpretation (November 18, 2010). Jurist, November 2010. Available at SSRN: https://ssrn.com/abstract=1720103