Summarize the differences between strict and loose interpretations of the Constitution and the Bill of Rights.

As you have read about various disputes over the meaning of the Constitution and the Bill of Rights, the centrally important role of the Supreme Court should have become more clear to you. The justices who sit on the Supreme Court rely on their own legal training, reasoning, and philosophical perspectives as they sort through precedents established in previous cases in their efforts to resolve differences of opinions about the meaning and application of the Bill of Rights.

Some justices adhere to what scholars call a “strict textual interpretation” of the Constitution. That is, a judge should read the words that are in the Constitution and not seek to find new or “between the lines” meanings in them. In stark contrast, other judges believe that the Constitution has no current meaning or applicability if it cannot be interpreted and adapted to new circumstances or controversies. These judges apply a more “loose interpretation” of the Constitution in their legal reasoning.

How do these two different approaches affect the outcomes of Supreme Court cases? In this lesson, you have read about cases where judges have interpreted the First Amendment in both strict and loose ways. Does the Establishment Clause, for example, strictly prohibit any congressional action that supports religion in any way? Before you answer, it is important to note that there is some dispute about what a strict textual interpretation really is. To “strictly interpret” what the Constitution says, many judges study and rely on statements and writings of the Framers not found in the Constitution itself. They believe these additional insights cast light on what the Framers intended to accomplish by wording things the way they did. Judges of this persuasion place a great deal of emphasis not only on the words in the Constitution, but also on “original intent.” Relying on this kind of analysis, many “strict interpretation” and “original intent” judges have decided that “establishment” means something different than a strict ban on any transfer of government money to religious organizations or people.

A judge who takes a “loose interpretation” approach to the First Amendment would be less concerned with original intent of the Framers and the precise meanings of the words they chose and more concerned with the legal principles and values at stake in a particular case. These judges are more likely to focus on what is just and fair in the context of America’s political system today, not fifty, a hundred, or even two hundred years ago. They believe that the Constitution is a living document that must be adapted to fit current circumstances and needs. It is precisely because the document is so flexible, they would argue, that it has served the nation for so long.

So, which approach is right? It comes down to a matter of opinion on several key questions:

1. Did the Framers of the Constitution have things to say that are relevant to us today?
2. Can or should we distinguish between their views on the structure of government and their views on specific social policy and civil liberties issues?
3. To what extent should we rely on their wisdom and political views versus our own?
4. Have times and circumstances changed to the extent that much of what the Framers believed is irrelevant, or at least outdated?

These are not easy questions to answer. I will make no attempt to answer them in the context of this course. However, as a participant in the American political process, it is important for you to think these questions through and express your views about what kinds of judges should be making decisions about the meaning of the Constitution.