By Micaela Delfino
Professor from Yale Law, Akhil Reed Amar, expresses that faithful constitutional interpreters go beyond literalism in order to ultimately be faithful to and redeem the project of the Constitution, which does revolve around a written text but requires us to sometimes go beyond just the literal words of the text. One technique is by reading and interpreting the Constitution as a whole: focusing on the words but rather than literal words, the words of the document as a whole, and the other is by thinking of it as an enactment, a constituting: the process by which the actual historic event occured.
Germán Bidart Campos, argentine jurist, explains that when we have a written constitution, interpreting its content is interpreting its sense, what it wants to mean. But, we still have to interpret the norms that are below the constitution to find out, by comparing them, what it wants to say and the sense we ought to give it.
He adds that when making the interpretation, one must always take into consideration the historic will of its authors. This interpretation can be dinamic, without disregarding the mentioned will, one can look for a finalist criteria to give a more accurate sense for the era we’re living in and for each specific circunstance or momentum.
The Constitution has certain principles. One of those principles is the freedom of speech and, although we find it on the First Amendment, it couldn’t had been the only protection because otherwise the first Congress before 1791 had to be permitted to censor speech. That shows us that even before the First Amendment, freedom of speech was a constitutional principle, because the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances“, it refers to the freedom of speech as if such a freedom already existed, because it did. The freedom of speech follows from the principle of popular sovereignty and, what is more, the process of ratifying the Constitution involved vigorous debates in which no one -be it pro or con- was censored.
The lived experiences of Americans reflect that, by epic free speech, the United States’ Constitution was ordained, and that’s what James Madison argues to John Adams, when the latter as President is support censorship measures: “If we’d had censorship measures like this in place in 1787-1788, we wouldn’t even have the Constitution”. James Wilson, both one of the Founding Fathers and a signatory of the United States Declaration of Independence, at the Founding notices that they were peacefully changing their way of government, not just by their words but by their actions. John Locke, English philosopher, states: “I have always thought the actions of men the best interpreters of their thoughts.”
All of these are arguments that can be used to prove that the Constitutional text itself is not the only source of meaning, but rather a most important one that has to be taken into consideration both with the time that was ordained and, rather by word for word, as a whole.