Interpreting the Constitution

Many people believe that it is exclusively the courts’ job to interpret the constitution. This is a fallacy.

What is true is that the courts most often have the final say in what is and what is not constitutional but they don’t always have the final say.

The way this works is that everybody has a right to interpret the constitution and use the power they have in our federal republic to implement their own interpretation.

You as an individual have a right to interpret the constitution the way you believe it should be interpreted and to implement that with the power you have. However, your individual power is much less than a court’s when you are in a court proceeding where a court has jurisdiction over you. The Court will apply its interpretation and because the executive branch is willing to buy into the court’s interpretation, it will jail you if the court says for them to do so.

However, if you managed to get a few million people to agree with your interpretation, you could initiate an amendment to the constitution that would change or clarify how it is supposed to be interpreted. This is what is meant by power of the people. You can also elect political leaders who will appoint judges who agree with your view but often judges rule in ways their appointers do not like.

The executive branch interprets the constitution the way they want to and they can take direct action. Their interpretation will prevail until someone brings a specific case against them. In that case we begin the dance of power between each branch. The executive branch can arrest and prosecute people. However, it cannot pass sentence. Only the courts can do that. If the courts interpret the constitution differently from the executive then, the courts simply refuse to convict people and the executive is frustrated.

The courts’ powers are limited though just as the executive and legislature’s powers are limited. Federal courts can only exercise their powers in actual cases or controversies brought before them through petition by people with standing to bring suit. They do not get to issue advisory opinions to express their views so the executive can do what it pleases where it doesn’t need the courts.

Federal Branches Balance of Power

Image source: http://www.kminot.com/art/charts/branches.jpg

In 1832 for instance, the Supreme Court issued a ruling that a Georgia statute dealing with Indian Nations within its borders was unconstitutional and limited the scope of federal power to take Indian lands. This is where President Jackson supposedly exclaimed about the Chief Justice “John Marshall has made his decision; now let him enforce it!” President Jackson, arguably, went on to steal Indian lands and commit genocide against the Indian population, in a series of forced re-locations commonly referred to as the “Trail of Tears” which resulted in many thousands of Indian people dying from the forced marches.

In modern times, as a result of the war on terror, Presidents Bush and Obama have created and maintained a large prison on a federal base in Guantanamo Cuba to house terrorist prisoners who the president has classified as not prisoners of war and not subject to constitutional protections to the same degree as those legally on our soil. The site and type of facility were specifically chosen to significantly limit the ability of the courts to exercise authority over these prisoners. These Presidents have interpreted the Constitution to allow them to do this and the courts have not been able to intervene.

We do have three branches of government, each with their own type and scope of power. These three branches are expected to vie for power as human nature generally causes people to do. Our system is set up to use this idea of human nature to keep the branches of government in constant tension to avoid concentrations of power that would be used to destroy freedom. This is precisely why you will see me condemning those courts and judges who defer too much to the legislature. Deferring too much defeats the checks and balances built into the system specifically to maintain freedom.

In the two examples, the Presidents could not have done what they did without the acquiescence of the legislature who creates laws and controls the money. The “Trail of Tears” was made possible by the Indian Removal Act passed by Congress in 1830. Guantanamo was made possible by at least tacit approval of the legislature providing funding. The Legislature could have passed legislation denying any funding of that prison and it would have disappeared. In fact, President Obama wanted to transfer all prisoners to U.S. soil and bring them under greater authority of the federal courts, presumably believing that to be the constitutionally correct thing to do, but the legislature passed a bill stopping him from doing so.

So you see, our branches of government are set up to have independent power, but to also be dependent in most cases on one of the other branches. Each gets to interpret the constitution in their own way and to enforce their view with the power the constitution specifically grants them. As these examples show, the Court does not always have the final word on what the Constitution means but in most cases it does.

Likewise, you as an individual have power to interpret the Constitution as you see fit, however your power as a sole individual is extremely limited. If you can convince a few million people to agree with you and influence an election as we just witnessed, then you just may have the last word, for a time, until the balance shifts again.