Applied or Interpreted?

One has to wonder whether the Founding Fathers believed the Constitution should be applied or interpreted with respect to the management of the country.

Human nature is such that man always tries to “see beyond” what is written or even what the facts may be in his insatiable thirst for growth and expansion.  It’s considered a part of life and ambition plays a strong part in a politician’s life.

Reading and contemplating what the Framers wrote and the view they had of the individuals they expected to serve in the various government functions, it appears they anticipated that the large majority of decisions would result from applying the principles they had so carefully crafted into the Constitution.

As written, each of the three branches, executive, legislative and judicial, had reasonably well defined areas of responsibility and authority.  Only the legislature could propose laws.  The executive was charged with seeing that properly executed laws were adhered to.  The judiciary was to apply the Constitution whenever a question arose as to the constitutionality of a law.  Note that the word was “apply”, not interpret.

To interpret anything is to inject an individual’s idea of what the point is rather than what the facts might be.  In the past 100 years, we have seen more “interpretation” than “application” of the constitution with respect to the operation of the federal government.

Today we have Supreme Court Justices (Ginsburg in particular, Breyer in part) openly stating that we should incorporate in our constitutional “interpretation” what exists in international law or laws in other countries.  That is, to a certain extent, a total disregard for the oath taken upon assuming the position of a Supreme Court Justice (to preserve, protect and defend).  The softest name for the individuals who do so is hypocrite but perhaps more pointed, “intellectually dishonest”.  

For those who wish to point to the Declaration of Independence and its clause, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation”, please note that it does not say “subject our decision or incorporate their thinking” in the action being taken.  When Jefferson wrote that part, it seems obvious that he was “selling” the point of view that the colonies were justified in their action since the King sought “the establishment of an absolute Tyranny over these States.”

If we apply the Constitution to a given situation, the question of “compliance” becomes clearer.  It is not clouded by the introduction of extraneous ideas or a personal desire or interpretation of the situation at hand.  It rules out the possibility of future deviations from the intended purpose of that part of the document being applied.  As an example, consider the “separation of church and state” so evident in today’s discussions.  Nowhere in the document do such words exist yet they have been incorporated by interpreting the actual words.  Amendment I states: ”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

By interpretation, we are no longer allowed to “worship openly”, start a school game on the playing field with a prayer, utter a word of approval of God in public discourse, or in some situations speak harshly since it might be classified as “hate speech”.  Hardly an accurate application of what was written.  On the very face of it, all this is a violation of the First Amendment’s opening sentence: “Congress shall make no law restricting freedom of speech, etc. . . .”

The Constitution should be applied while the laws enacted by Congress should be interpreted to determine compliance with the Constitution.

While imagination is a wonderful thing, it deserves no part in applying the Constitution.

That’s my view.  What’s yours?  Reach me at constitionviews.com © Copyright 2012 Hillard W. Welch