The distinction between interpretivism and noninterpretivism lies at the heart of the contemporary debate over the nature and extent of judicial power under the Constitution. Must the Supreme Court be bound to the text of the Constitution and the intentions behind that text or may it go beyond the “four corners” of the document to ascertain its meaning? The debate over interpretivism and noninterpretivism is closely tied to the role of original intent in constitutional and legal interpretation.
Interpretivism and noninterpretivism should not be confused with the more traditional distinction between strict construction and loose construction. Strict and loose construction are both forms of “interpretivism,” where the only question is how to read the Constitution, loosely or strictly. The idea of noninterpretivism, on the other hand, raises the question of whether to read the Constitution in the sense of being bound by its text and the meaning behind that text.
The more extreme noninterpretivists, such as Michael Perry and Ronald Dworkin, for example, believe that it is not only appropriate but necessary for judges to infuse the Constitution with contemporary conceptions of justice; the inquiry is not so much what the Constitution means as what it should mean. The objective of noninterpretivism is to render the Constitution a morally evolutionary document untied to either the text strictly speaking or the original intention and meaning behind that text.
Critics charge that such a view reduces the written Constitution to nothing more than judicial opinion and that interpretivism is the sole legitimate approach under a written Constitution deemed to be lasting unless changed by formal amendment. Interpretivists, in the strictest sense, argue that not only the literal text but the original intention behind that text must govern every judicial decision; more moderate inter‐pretivists seek to be guided more by the text than the original intention as such. Thus, as Robert Bork has argued, even though the framers of the Fourth Amendment's prohibition of unreasonable searches and seizures could not have had electronic eavesdropping in mind, the prohibition logically extends that far.
In fact, most judges fall between the polar extremes of interpretivism and noninterpretivism, seeking some pragmatic position for the resolution of the cases and controversies that come before them.
See also Constitutional Interpretation.
— Gary L. Mc Dowell
