Interpreting the Constitution

How should we interpret the Constitution? Should we go by what it says, or by what we think the Founding Fathers and framers intended?

Take the 14th Amendment's first sentence: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

So, apart from foreign diplomats' children (who are not "subject to the laws thereof"), this would mean that even children of undocumented residents are entitled to citizenship. To many, this is an unpalatable concept -- they argue that the amendment was designed to give citizenship to former slaves, not children of illegal aliens.

Perhaps we should go by what we think the original writers intended. In that case, let's think about the Second Amendment: "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."

What did the writers intend? Did they intend for everyone to have automatic weapons to secure our freedoms and resist oppression? Probably not. George Washington would have had a much harder time suppressing 1795 Whiskey Rebellion if he'd had to face a bunch of folks thusly armed.

Determining the writers' original intent is a good deal trickier than just dealing with what was written. We can judge the mood at the time, but how do we know the writers of the 14th Amendment didn't mean to write things the way they did?

Regardless, the people who wrote the Constitution and its amendments could probably nenver have conceived the realities of life in this day and age. Why should we hold to what those people thought back then?

Maybe we should interpret the Constitution according to the trends of the present. That is, after all, how Justice William O. Douglas saw things in the 1965 Griswold v. Connecticut case that elucidated the right to privacy. Though his opinion drew criticism because of its talk of "penumbras" and "emanations" fron other rights amendments, the concept still remains.

The problem with that approach is that trends change, and "judicial activism" is decried by both sides in Congress. Today, Douglas's disregard for stare decisis is viewed with a heavy dose of skepticism, thanks to somewhat sketchy jurisprudence.

Plus, consider that the Constitution doesn't grant the Supreme Court justices the ability to make the laws or enforce them -- only to decide their constitutionality. They rely on the good graces of the other branches to uphold what they decide.

Regardless of the approach one uses, one should be consistent in their constitutional interpretation. It may not align nicely with political opinions, but that's not what the Constitution was intended for anyway.