THE AMERICAN CONSTITUTION AND ORIGINAL INTENT
It may seem a bold step to mention the US Constitution in one breath with the medieval ius commune, but it is not without justification. The venerable American Constitution also wields a
quasi-religious authority and has given rise to divergent schools of interpretation and to dissensions of truly theological proporÂtions.
That ancient holy books are read with different eyes by different generations is normal, but in the case of the ConstituÂtion this divergence has direct practical consequences because of the American judicial review of the constitutionality of the laws, which makes the judicature, and particularly the United States Supreme Court, the arbiter of the law. The way this Court approaches and interprets the eighteenth-century Constitution is therefore of paramount importance; it is literally a question of life and death in the controversial issue of capital punishment, to which we will now turn our attention.7The discussion in the Court concerned the fundamental quesÂtion as to whether judges in the second half of the twentieth century were bound by the â€?original intent’ of the lawgiver of two centuries ago. One school believed that this was the case, i.e. that when a text allowed various interpretations it was the duty of the jurists andjudges to discover its original meaning and the intention of the legislator, and to act accordingly. Another school held that it was unreasonable to interpret and apply a legal norm in light of the ideas and values of past centuries and that old texts should be understood and applied taking into acÂcount the â€?evolving standards of decency’ and the values and outlook of the present day. It is a universal issue and one enÂcounters it, inter alia, in Islamic lands: when modern society is deviating from the Koran, people should be made to comply with the holy text and not the other way round.
In western countries on the contrary the prevailing sentiment is that when social valÂues change, the law should comply with the new standards and changing public opinion.It is interesting - but not surprising - to note that this disÂcussion is taking place also among Christian theologians. The cardinal question there is whether Holy Scripture should be studied as a historic document, with particular attention to its
7 The controversy came to a head in ι 967, when executions were stayed pending the decision of the Supreme Court. Executions were resumed in 1977. meaning in biblical times, or understood as an inspiration for our own time and its message made meaningful to present generaÂtions. The most striking term used in this discussion is Wirkungs- geschichte (â€?history of effects’), i.e. a biblical exegesis that wants the ancient texts to have an effect on modern society and therefore seeks to interpret them, not in the light of their meaning two millennia ago, but of present values and aspirations.[67] A similar choice confronts learned rabbis who engage in the interpretaÂtion of Scripture. Some believe in an imaginative exegesis of the canonical texts and hold that divine words lead an existence of their own and should be applied in function of present-day conditions, whereas others pay more attention to the historical circumstances under which the Bible was written and its original intention.[68]
The issue before the US Supreme Court was the following. The Eighth Amendment of the Constitution (copied literally from the English Bill of Rights of ι 689) proscribes â€?cruel and unusual punishments’ and as, according to the opponents of capital punishment, execution was a cruel and unusual punÂishment, all American laws imposing the death penalty were unconstitutional. What were the judges to decide? One school of thought maintained that it could not have been the origiÂnal intent of the founding fathers to abolish the death penalty (but only unusually cruel and arbitrary means of maiming and executing), because other articles of the Constitution (the Fifth and Fourteenth Amendments), stipulating that no life could be taken without â€?due process of law’, made it clear that the lawÂgiver had no intention of abolishing capital punishment.
The opponents of the death penalty could, of course, not deny this, but they maintained that the Constitution should be interpreted in the light of standards and values of our own time, disregarding the â€?original intent’ if the latter was rooted in a mentality incomÂpatible with modern society. â€?Cruel and unusual punishments’ are punishments that are seen as such by present-day public opinion and if it feels that executions belong to that category, they should be declared unconstitutional (whatever the feelings of the drafters of 1791). The Court, as is well known, decided against the unconstitutionality after some of the most dramatic discussions in its history (and executions, as we have seen, were resumed in ι 977, after a ten-year hiatus).We cannot enter into any details here, and we refer the reader to the eloquent article by the leading abolitionist and member of the Supreme Court, MrJustice Brennan,[69] [70] and to the opposing view, cogently expressed by MrJustice Scalia, also of the Supreme Court. Scalia is known in general for his conÂservative stance and in particular for his advocacy of the interÂpretative method known as textualism, i.e. the notion that legal authority attaches to the text of a duly enacted statute or constiÂtution. The alternative, value-orientedjudicial lawmaking, leads the courts to writing their own policy preferences into the law: decision should be based on neutral principles of law rather than the values of the judges. Scalia’s originalism therefore insists that the Constitution must be interpreted so as to reflect its original meaning rather than the aspirations of our own time.11
The reader might be interested to hear what my Maastricht students, who were keenly interested in this topic, thought about it in a lively discussion conducted in October ι 996. They were almost unanimous in their opposition to capital punishment, but had different opinions on various points of legal detail.
Some stuÂdents questioned the idea that we â€?should surrender to the spirit of modernity’ and believed that the Constitution ought to remain unaltered and stable even, and especially when society developed new ideas and attitudes. Most, however, felt that the law had to be flexible â€?as we cannot go on living in the eighteenth century’. But how was the law to be changed? Ideally, this was the task of the lawgiver (but changing the Constitution is notoriously diffiÂcult), but until this happened the judges had to adapt and interÂpret statutes according to modern â€?standards of decency’. Whose standards of decency? Not the people’s, for public opinion in the United States supports capital punishment, as does public opinÂion in Great Britain (at least for terrorists and killers of policemen and -women). So the â€?evolving standards’ are those of an elite, either the politicians who have abolished capital punishment in the parliaments of Europe, or the abolitionist judges in the United States. Some students maintained that the people were stupid and ignorant, and that it was the duty of the elite to take things in hand, a view which predictably led to heated exchanges with more democratically inclined attendants of the class.12It is noteworthy that the topic of â€?judicial activism’ or even â€?judicial supremacism’ divides various countries of the
from preparatory texts and notes, whereas the followers of the â€?objective method’ held that ancient laws had to be interpreted in the light of modern conditions — a controversy that was taken up by Nazijurists after 1933. See F. Rigaux, â€?Les juristes allemands dans l’Etat totalitaire ι 933—1 945’, Academie royale de Belgique. Bulletin de la Classe des Lettres (ι 995), 441 —2.
12 For more information see, inter alia, the following works: P. Irons, Brennan vs. Rehnquist. ThebattlefortheConstitution (NewYork, ι 994); J. Tully, Strangemultiplicity.
Constitutionalism in an age of diversity (Cambridge, ι 995); M. B. Koosed (ed.), Capital punishment, 3 vols. (Hamden, Conn., ι 996); M. Mello, Against the death penalty. The relentless dissents of Justices Brennan and Marshall (Boston, 1996). Even today performing artists face the comparable question whether they should respect the intent of the composer and use period instruments, as Francois-Joseph Fetis (d. 1871) believed, or follow the fashion of their own time and bring the interpretation up to date, as Felix Mendelssohn (d. I 847) saw it.world-wide common-law family. American judicial review is not popular in Britain, where Parliamentary supremacy is a venerable tenet and â€?turning judges into unelected politicians’ is frowned upon.13 No such restraint was felt in Australia when, in 1951, the High Court declared that the Menzies government’s legislation dissolving the Communist Party of that country was invalid.14 More recently the same country caused a stir with a momentous judgment on the rights of the aboriginals. This â€?Mabo decision’ of 3 June ι 992 has obvious economic repercussions, on which we will not expatiate here, but it is remarkable from a strictly legal point of view, since it delves deeply into historical arguments and considerations of natural justice, with which modern lawyers are on the whole unfamiliar.15 The Mabojudgment, which was taken by a six to one majority, is as significant as it is controversial. The question was asked whether the Court carried â€?judicial activism too far in departing from principles that were thought to have been settled for well over a century’ and whether it was right to apply contemporary standards to overturn rules formulated at a time when community values were not necessarily the same.16 The â€?proper limits of judicial law-making’ were consequently discussed and there was talk of Mabo as an example of â€?judicial legislation’ and even â€?the high point of judicial activism by the High Court’.
13 Thus Anthony Lester in an article entitled â€?Judges and ministers’ in the London Review of Books (ι 8 April 1996), 9—11. The author also describes how from â€?late Victorian times until the early sixties, judicial restraint bordered on judicial abdication’ and quotes the argument in the House of Lords by the Home Office Minister, Baroness Blatch, that incorporation of the European Convention into British law â€?would strike at the constitutional principle of Parliamentary supremacy’. This attitude has changed under Prime Minister Tony Blair.
14 Menzies then tried to realize his aim with a referendum to amend the constitution in order to give the Commonwealth Parliament power to dissolve the Communist Party, but he lost by a very narrow margin.
15 Text of the Mabo decision in â€?Mabo and others v. the State of Queensland’, Reports of cases determined in the High Court of Australia (ι 992), CLR ι, ι —217. Commentary: M. A. Stephenson and S. Ratnapala (eds.), Mabo: a judicial revolution. The aboriginal law rights decision and its impact on Australian law (St Lucia, Qld., 1993).
16 The Right Honourable Sir Harry Gibbs, formerly ChiefJustice of the High Court of Australia, in the Foreword to ibid., xiii. The similarity with the issue in the capital-punishment debate in America is striking.
Eddie Mabo was a member of the Meriam people, the traditional owners of Murray Island and surrounding islands and reefs in the Torres Strait. In ι 982 he and four other Islanders commenced an action seeking a declaration of their traditional land rights. Ten years and hundreds of pages of argument later they won their lawsuit, whose most striking elements we will briefly try to highlight. The argument went back to the eighteenth century and the European colonizers’ doctrine that land in other contiÂnents inhabited by â€?uncivilized’ tribes was a â€?barbarous country’ and therefore a res or terra nullius so that the natives could legitiÂmately be dispossessed in favour of the â€?enlightened’ Europeans. It is this old concept which the Australian Court, disturbing â€?a legal understanding which had existed for over 150 years’, rejected because, even though it had been accepted and unÂcontested for all those years, it offended present-day sensitivity and widespread aversion to imperialism, colonialism and racism: the dispossession which followed the annexation of the Murray Islands was â€?a sordid example of discrimination which blatantly violated values embraced by the civilised world’ and present- day community feelings and attitudes. Judgement according to the â€?evolving standards of decency’, which had been narrowly repulsed by the American Supreme Court, was a few years later accepted by a large majority of the High Court in Canberra (illustrating once again the deep divisions and uncertainties among leading lawyers of our time).[71]