A few days ago I mentioned Michael Stokes Paulsen’s crash course on how to interpret the Constitution. Paulsen outlined five techniques of constitutional interpretation that courts and commentators employ: (1) arguments from the straightforward, natural, original linguistic meaning of the text; (2) arguments from the structure, logic, and relationships created by the document as a whole; (3) arguments from history, original intention, or purposes behind an enacted text; (4) arguments from precedent; and (5) arguments from policy.
Today, Paulsen has another article that addresses whose job it is to interpret “Constitutional law.” As he says, the role is not the exclusive domain of the courts, or even of government officials. Faithful interpretation is the duty and responsibility of faithful citizens.
The correct answer to the question of who gets to interpret the Constitution is “everyone.” The framers of the Constitution quite sensibly considered the power of constitutional interpretation—the power to interpret all the other powers, and all the rights of the people—to be far too important a matter to vest in a single set of hands.
The framers instead left constitutional interpretation to the pull and tug of competing interpreters and competing branches of government. The president (and the executive branch) interprets and applies the Constitution within the scope of the president’s constitutional powers. Presidents swear a unique, constitutionally prescribed oath to “preserve, protect, and defend” the Constitution. They also promise they will faithfully execute the laws, including the Constitution. How could they do that without interpreting the Constitution independently? Congress also interprets the Constitution in the course of exercising all of its powers: legislation, impeachment, proposing constitutional amendments, checking presidential appointments, treaty ratification, and more. Even officers of state governments have the sworn duty and responsibility faithfully to interpret the Constitution.
Finally, juries, voters, and citizens have the authority to interpret the Constitution. We the People retain the right to interpret, faithfully, what is after all our Constitution, and may press our views of the proper understanding of the document with the limited powers available to us: jury service, voting, and political advocacy. And we may do so—indeed, of course, must do so—independently of the views of courts and other institutions of government if we are to keep their misinterpretations in check. In so doing, we should draw on the above lessons concerning the proper method for interpreting the Constitution, emphasizing the document’s text and original meaning, structure, and history. “Constitutional law” is not the exclusive domain of the courts, or even of government officials more generally. Faithful interpretation is the duty and responsibility of faithful citizens.