The Constitutional Debate

By Shiffman, Stuart | Judicature, May/June 2006 | Go to article overview

The Constitutional Debate

Shiffman, Stuart, Judicature

The constitutional debate A Matter of Interpretation: Federal Courts and the Law, by Antonin Scalia. Princeton University Press. 1997. 176 pages. $17.95 (paper).

Active Liberty: Interpreting Our Democratic Constitution, by Stephen Breyer. Alfred A. Knopf. 2005. 176 pages. $21.

Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, by Cass Sunstein. Basic Books. 2005. 284 pages. $26.

As citizens become increasingly concerned about the role the courts play in their daily lives, an argument that has flourished in our nation for more than 200 years seems to be gaining importance in the national psyche. The debate surrounding constitutional interpretation has been advanced to the front burner of public discussion by important events in the judicial life of our nation.

Last year saw two vacancies on the Supreme Court and the concomitant debate over what type of justice should be appointed to the Court. The nomination of John Roberts began the debate, but his ultimate confirmation as chief justice, succeeding the conservative William Rehnquist, truncated that discussion. A replacement for the late chief justice, who shared Roberts' conservative legal philosophy, did not tip the tenuous balance of the Supreme Court and therefore the Senate debate over confirmation was stifled. The nomination of Joseph Alito, a man whose legal philosophy mirrors that of the Court's most conservative jurist, Antonin Scalia, brought the debate to full boil because Alito would replace Justice Sandra Day O'Connor and tip the balance of the Supreme Court in a far more conservative direction.

More important than the personnel decisions surrounding the Court are the legal thunder clouds that seem to be gathering on the horizon brought about by the war on terrorism. In 2005, the Supreme Court and lower federal courts struggled with the dilemma brought on by the war on terrorism and the treatment of suspected terrorists both in courts, military facilities, and during investigations of terrorist activities. The disclosure that the President authorized surveillance and investigations that went beyond legislative and judicial approval raised serious and significant questions of constitutional magnitude. Debate on those questions centers on constitutional interpretation and what our founding fathers bequeathed to America in the Constitution.

Supreme Court justices contribute to this national debate by their written opinions. On occasion they may also offer a broader view of their philosophy. In 1997, Justice Scalia, a socalled "originalist," presented his position in A Matter of Interpretation. The book is based on lectures he delivered at Princeton in 1995 as part of the Tanner Lecture on Human Values. Scalia concluded that, "By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all." Fidelity to the Constitution's original meaning is the cornerstone of Scalia's jurisprudence.

Justice Stephen Breyer, who sits both physically and philosophically to the left of Justice Scalia, presented a very different view of constitutional interpretation in his Tanner Lecture. Active Liberty: Interpreting Our Democratic Constitution is Breyer's book based upon his lectures. In contrast to the originalist position of Scalia, Breyer advocates that the Constitution be interpreted in a manner that recognizes the problems of our contemporary world. "Since law is connected to life, judges in applying a text in light of its purpose should look to consequences, including 'contemporary conditions, social, industrial, and political of the community to be affected."' Thus the philosophical battle lines are drawn and the constitutional debate is joined.

A Matter of Interpretation

For his part, Justice Scalia fears that the common-law process of judging has resulted in a judicial mind set that seeks the most desirable resolution in individual cases rather than a consistent application of legal principles to an individual case. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Constitutional Debate


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.