Douglas Lind


A multifaceted debate over constitutional interpretation dominates contemporary constitutional scholarship in the United States. Jurists dispute whether constitutional meaning should be drawn exclusively from the text of the Constitution, restricted to its original meaning or to the ascertainable intent of the Framers, subsumed under political theories showing the structure or aims of constitutionalism, expanded to include Rawlsian, natural law, utilitarian, or other normative principles of justice, or reformed to reflect the evolutionary ascension of moral consciousness in America.

Despite the spectrum of theoretical viewpoints found in this contemporary debate over constitutional meaning, one important group of persons sometimes engaged in constitutional interpretation has largely ignored the debate. Judges, those public officials charged with administering the laws, for whom interpreting laws-including constitutions-is often a necessity, have given the interpretive debate little attention. Some say this judicial silence comes from a predisposition toward judicial activism. Contending that many judges legislate from the bench by basing their decisions on personal visions of a just and fair society, these critics charge that activist judges ignore the juristic debate because following the true method and restricting deliberation to the true criteria for constitutional interpretation would hinder the achievement of their political agendas. Others attribute the silence to "unimaginative legalism," i.e., an unwillingness to bend the slow machinery of common law development to expedite "humane evolutions of legal principle." Perceiving the common law method of incremental growth in decisional law as an outworn tradition filled with legal rules diecast under antiquated forms to sustain obsolete concepts of economic and social morality, proponents of this view castigate the courts for undue "restraint," for passive indifference to the moral underpinnings of the law, as well as to the pressing needs of modem society.