One central assignment for a judge or a court is, then, to examine, explain, and apply the foundational texts both of the Constitution and of various individual laws and regulations.
If a citizen’s liberties are codified in these documents, then carefully examining the words is the activity which will protect a citizen’s freedoms and civil rights. We can see how, over the years and centuries, these texts have protected citizens and their rights from the government.
Citizens of the United States, wishing to limit the government’s power and thereby protect themselves, wrote the Constitution in 1787. It was ratified by the various states during the several years following.
In 1789, the citizens further clarified their rights by proposing, and ratifying, the first ten amendments to the Constitution, known collectively as the Bill of Rights.
These texts, along with numerous other statutes, are interpreted and applied in court. Four principles have emerged which guide legal interpretation. Attorney General and former Senator Scott Pruitt explains the first principle:
The law, whether statutes or the Constitution itself, must be applied according to its text. In other words, judges should not apply the law based on what is good policy or what they suppose Congress may have intended (but did not express) in passing legislation.
The task of a judge is to examine words on paper. The judge is not to operate out of his own opinion about what should happen, nor is the judge to guess about what Congress may have thought when it wrote the words.
The rules of a board game, or of a sport, are similar: the people playing the game, or the referees and umpires, must apply the rules as they stand and as they are written. The officials cannot make calls according their own opinions about what should happen; nor can the officials make calls based on guesses about what other people might believe.
Scott Pruitt continues with the second principle of interpretation:
The words of the law should be understood as they were understood by the people when the law was enacted.
Words and phrases can change their meaning over time. For example, the Constitution speaks of Congress issuing a “letter of marque,” a phrase which is no longer common in our language. The phrase refers to a document which authorizes a private citizen to stop pirates and turn them over to the government.
Judges must become familiar with certain words and phrases which have changed their meanings, or which are no longer often used. Why? Because rights, freedoms, and liberties are contained in those words and phrases.
The meaning of laws is fixed by the meaning ascribed to their words at the time they were enacted.
The first two principles relate to words. A notion called ‘popular sovereignty’ is contained in a third principle of constitutional
jurisprudence: an unwavering respect for the idea of popular government. Laws, including the Constitution, receive their legitimacy from the people.
The authors of the Constitution were familiar with the writings of John Locke and other philosophers. Based on such views, they argued, in the Declaration of Independence, that “the consent of the governed” lent legitimacy to a government.
The Declaration of Independence, in turn, was the philosophical foundation for the Constitution. The Constitution formulates mechanisms whereby “the governed” – i.e., the citizens – can give or withhold consent. Scott Pruitt writes:
Judges should respect the constitutional prerogative of the people to pass laws through their representative legislatures, limited by the restraints imposed by the Constitution – which was itself ratified by popular means.
The fourth and final interpretive principle for judges and courts is that the one should read the Constitution as a document which articulates, and provides defensive mechanisms for, the individual’s political liberties:
The rights actually guaranteed in the Constitution should be tenaciously defended, from the right of free speech to the rights of criminal defendants.
This is especially clear in the ninth and tenth amendments. The citizens pointedly withheld their ratification of the Constitution until those amendments were added to it.
The ninth amendment states that a citizen not only has the rights which the Constitution specifically designates to citizens, but that a citizen also has other, unenumerated, rights.
The tenth amendment states that the government has only those rights or powers specifically given to it in the Constitution, and no others. Scott Pruitt comments:
The Constitution’s primary protection of liberty is its structure of checks and balances between branches and its division of powers between the federal government and the states.
One important task for a judge or for a court, then, is to determine ‘questions of law’ – to ask about the meaning of a piece of text.
Not all of a legal process is linguistic. There are also ‘questions of fact’ – determining a physical circumstance or event.
The United States legal system was able to develop toward an increasing amount of personal liberty and toward a desired objective neutrality because it directed its judiciary to view their task linguistically. The codification of legislation in text is a public process, making the law accessible to all.
Two of the several values on which a free society bases its legal system are objectivity and neutrality.
When the interpretation of law is seen as a linguistic task, and not a political task, the legal process is nudged toward objectivity. When the judge and jury are asked to view themselves as interpreters of a text, and not expressers of conviction, then the process is nudged toward neutrality.