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Reading the Constitution Essay

In their essay, “How Not to Read the Constitution”, Lawrence Tribe and Michael Dorf describe the ways the Constitution has been interpreted by different people. Tribe and Dorf make it clear that the idea that the Constitution should be interpreted based on what the framers original intent was is not the way to read the Constitution, it takes much more than that. Tribe and Dorf also explain that justices do not interpret the Constitution in a way that would please the readers (the people) on purpose, because if that were so then the authority of the Constitution would “lose all legitimacy if it really were only a mirror for the readers’ ideals and ideas (p.49).”

This means that people have the tendency to interpret the Constitution based on their own beliefs. Also, the justices themselves have their own beliefs and their own interpretations of the Constitution, but they should not come up with a decision based solely on their own opinions. The exact way to read the Constitution is indefinable, therefore in their essay, Tribe and Dorf instead described how not to interpret it and implied that justices should make wise decisions that are not entirely based on their own beliefs, the original intents of the framers made generations ago, or the expectations of the public now.

In the case Planned Parenthood of Southeastern Pennsylvania v. Casey, Planned Parenthood was challenging a Pennsylvania law that placed some restrictions on abortion. Many opponents of abortion hoped that the Supreme Court would use the case to strike down the decision made in Roe v. Wade, which states that a state ban on all abortions is unconstitutional. The majority of the court voted not to do so. This is a good case for providing insight into the way justices interpret the constitution and make their decisions.

Justice of the Supreme Court Sandra Day O’Connor wrote the majority opinion for the case. The majority voted not to overrule the decision made in Roe v. Wade. O’Connor wrote on behalf of the majority and wrote in the opinion that the main reasons for this decision were based on the principle of stare decisis and the fact that the case’s central ruling is workable for the states and does not come at odds with other precedents. Also, O’Connor wrote that the word “liberty” from the statement “no state shall deprive any person of life, liberty, or property, without due process of law,” (the Due¬†Process Clause of the Fourteenth Amendment) includes a woman’s right to an abortion. Thus, the precedent decision made in the case Roe v. Wade that deals with the rights to and restrictions on abortion still stands.

Justices William Rehnquist and Atonin Scalia each wrote dissenting opinions about this case. In Rehnquist’s dissenting opinion, his main point upon which he disagrees with O’Connor is that the right to an abortion is not “fundamental”. By this statement Rehnquist means that the word “liberty” in the Due Process Clause of the Fourteenth Amendment does not encompass the right to an abortion because the right to an abortion is not “implicit in the concept of ordered liberty.” Thus, he does not agree with the majority opinion. Scalia disagreed with O’Connor and the majority about roughly the same point Rehnquist described in his dissenting opinion. The difference in Scalia’s opinion is that he believes there is no question that the right to an abortion is a liberty, but he states that it is not a liberty that is protected by the Constitution.

Out of these three justices, Sandra Day O’Connor would most agree with Tribe and Dorf’s essay about how to read and interpret the Constitution. I believe she would be in agreement with them because unlike Rehnquist and Scalia, it seems that she interpreted the Constitution not by what she thought the framers originally meant, but by what she thought would do some good in the future. She also made it clear in her writing that the decision by the majority was not made based on the justices personal beliefs. She shows this in the majority opinion she wrote, “…the stronger argument is for affirming Roe’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.”

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