Dr. Martin Hash Podcast

Life & law goes on: when a new situation arises, or even a new variation on an old situation, The Constitution is often looked to for guidance. It's at this point that the various interpretations come into play. There's no one right way to interpret The Constitution, and judges often don't always stick to only one. Outside of legal circles, the popularly-known ways of interpreting The Constitution are “plain language,” “conservative,” and “original intent.”

Plain language interprets nothing. If there’s no mention of privacy then there is no Right to it. Another example: if there's no comma after “militia” in the 2nd Amendment, then there is no Right for a private citizen to bear arms; maybe it only means the National Guard? Or maybe people have to belong to a militia to own a gun? Luckily, SCOTUS followed the plain language, included the comma, and interpreted the 2^nd Amendment so individuals can own guns.

Conservative interpretation means adhering to past precedence, the more there is, the stronger it is, and new judgments can only overturn precedence under extreme scrutiny, like Dread Scott was overturned to reject slavery. Roe v. Wade, the abortion ruling, is highly controversial, the most fought over ruling in a century, but because of all the past precedence, it's highly unlikely it will ever be overturned. SCOTUS would have to become much less conservative.

Mindreading is in the purview of the original intentists, and thankfully so, because otherwise several Rights would not exist. For example: Right of Privacy, and Freedom of Association were determined by SCOTUS to be the intention in the The Constitution, even though they are not actually written there. Predicting the past from the future has gone out of fashion, but with the current impossibility of amending The Constitution, it will probably come back.